11 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LffiRARY 


A  TREATISE 


LAW  OF  EVIDENCE 


AS  ADMINISTERED  IN  ENGLAND  AND  IRELAND; 


ILLUSTRATIONS   FROM   AMERICAN   AND   OTHER    FOREIGN 

LAWS. 


From  the  Eighth  English  Edition. 

BY 

His  Honour  JUDGE  PITT  TAYLOR. 


VOL.  T. 

PART  FIRST. 


Longum  iter  est  per  pracepta. 

Breve  et  efficax  per  exempla  — Senboa. 


PHILADELPHIA: 
THE  BLACKSTONE  PUBLISHING  COMPANY 

1887. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1887,  by  The  Black- 
stone  Publishing  Company,  m  the  office  of  the  Librarian  of 
Congress,  at  Washington,  D.  C. 

r 


mq 


(2740) 


c^ 


PREFACE  TO  THE  EIGHTH  EDITION. 


In  the  Preface  to  the  Seventh  Edition  of  my  Treatise  on. 
Evidence  I  find  tlie  followin,^  remarks  : — 

"  The  labour  I  have  bestowed  on  the  work  has  been  necessarily 
great,  because  the  Judicature  Acts  of  1873  and  1875  have  altered 
the  law  on  so  many  subjects,  and  unsettled  it  to  such  an  extent, 
that  it  has  become  extremely  difficult,  either  to  dovetail  the  old 
procedure  or  the  old  principles  with  the  new,  or  to  determine,  in 
a  cloud  of  cases,  by  what  rules  the  practitioners  and  the  suitors 
must  henceforth  be  guided, 

"  We  all  know  what  is  the  best  recipe  for  spoiling  broth;  and,  pos- 
sessing that  culinary  knowlege,  we,  perhaps,  ought  not  to  marvel, 
if  a  colossal  scheme  of  law  reform, — subjected  in  the  first  instance 
to  the  criticisms  of  a  multitude  of  commissioners,  (all  able  and 
learned  men,  and  some  few  just  a  trifle  opiniative,)  and  then  en- 
trusted, in  succession,  to  two  distinguished  Lord  Chancellors  to  ob- 
tain for  it  the  piecemeal  sanction  of  the  Legislature, — should  have 
failed  to  achieve  that  success  which  its  too  sanguine  originators  an  - 
ticipated  from  its  adoption. 

"Regarded  in  a  practical  light,  either  far  too  much  or  far  too  lit- 
tle has  been  effected  by  the  measiire.  Commencing  in  wrangles 
and  progressing  in  compromises,  it  has  naturally  ended  in  a  muddle. 
The  fusion  of  Law  and  Equity, — which  was  to  overthrow  such  a 
phalanx  of  abuses,  and  to  frustrate  so  many  knavish  tricks, — has 
resulted,  not  only  iu  co??fusion,  but,  to  use  the  vigorous  language 
of  our  blind  bard,  in  'confusion  worse  confounded'  It  is  a  humi- 
liating confession— but  it  is  unquestionably  true." 

(2741) 

756027 


iv  PREFACE    TO    THE    EIGHTH    EDITION. 

If  to  the  difficulties  with  which  I  had  then  to  contend,— and 
the  language  just  cited  is  in  no  way  overcharged, — be  added 
those  which  have  since  been  strewn  in  my  path  by  the  pecu- 
liar embranglement  of  recent  Legislation,  lean  only  marvel 
at  my  own  intrepidity  in  venturing  to  prepare  for  the  press 
an  Eighth  Edition. 


In  this  Edition, — besides  ''booking  up"  in  their  proper 
places  all  the  decisions  of  the  Courts  which,  in  my  judg- 
ment, are  calculated  to  throw  any  substantial  light  on  the 
New  Procedure, — I  have  done  my  utmost  endeavour  to 
weld  into  one  consistent  whole  the  incongruous  provisions 
relating  to  Evidence,  which  are  to  be  found  scattered  with- 
out method  or  system  over  the  varied  enactments  of  the 
New  Bankruptcy  Act,  the  Army  Act,  the  New  Code  re- 
specting Bills  of  Exchange,  the  Factory  and  Workshop 
Act.  the  Contagious  Diseases  Animals  Act,  the  Municipal 
Corporation  Acts,  the  Corrupt  Practices  Acts,  the  Bills  of 
Sale  Acts,  the  Employers'  Liability  Act,  the  Summary 
Jurisdiction  Acts,  the  Bankers'  Books  Evidence  Act,  the 
Married  Women's  Property  Act,  the  New  Patent  Law, 
and  last,  though  not  least,  the  New  Rules  of  the  Supreme 
Court. 


That  I  have  succeeded  in  making  all  crooked  places 
straight,  and  all  rough  places  plain,  I  cannot  venture, 
in  my  most  sanguine  mood,  to  affirm;  but  thus  much  I 
can  honestly  assert,  that  T  have   spared   neither  labour, 

(2742) 


PREFACE    TO    THE    EIGHTH    EDITION.  V 

nor  time,  nor  energy,  in  attempting  to  make  my  work 
both  worthy  of  its  former  character,  and  of  real  practical 
nse  to  the  Profession. 

In  now  finally  laying  down  my  pen,  so  far  at  least  as 
tliis  Treatise  is  concerned,  I  must  be  permitted, — as  on  a 
former  occasion. — to  adopt  the  sentiment  of  a  Scotch 
Divine,  and  earnestly  to  repeat  after  him, — 

"  Unthought  of  by  man  in  rewards  or  in  praises, 
May  I  be  remembered  by  what  I  have  done." 

J.  PITT  TAYLOR. 

58,  EccLESTON  Square, 
1st  Dec,  1884. 


(2743) 


EXTRACTS  TROM  THE 

PREFACE  TO  THE   FIRST   EDITION. 


The  following  Work  is  founded  on  "  Dr.  Greenleafs  American 
Treatise  on  the  Law  of  Evidence."  Indeed,  when  in  July,  1843, 
my  attention  was  first  especially  drawn  to  the  subject  of  Evidence, 
with  a  view  to  publication,  I  undertook  to  discharge  the  duties  of 
an  editor  only,  and  it  was  not  until  I  had  been  engaged  for  many 
months  in  that  undertaking  that  I  finally  determined  to  abandon 
it,  and  to  submit  to  the  public  a  treatise  of  my  own.  In  taking  this 
step,  I  had  no  idle  hope  of  being  able  to  produce  a  book,  which, 
regarded  as  an  exposition  of  general  principles,  should  surpass,  or 
even  equal,  that  written  by  the  learned  American  Professor;  but  I 
thought  that,  by  citing  more  fully  the  leading  decisions  of  our  own 
Courts,  and  by  introducing  such  portions  of  our  Statute  Law  as 
related  to  the  subject  of  Evidence,  I  might  possibly  compile  a  work 
of  more  practical  utility  to  the  English  and  Irish  lawyer.  To  have 
introduced  this  new  matter,  in  the  shape  of  notes  to  Dr.  Greenleafs 
Treatise,  would  have  been  highly  inconvenient;  to  have  interwoven 
it  with  his  text,  and  still  to  have  called  the  woi'k  by  his  name, 
would  have  been  alike  unjust  to  him  and  to  myself;  and,  conse- 
quently, it  appeared  to  me,  that  the  only  alternative  left  was  to 
publish  a  work  in  my  own  name,  for  the  eiTors  of  which  I  should 

be  alone  responsible. 

(2744) 


EXTRACTS  FROM  THE  PREFACE  TO  THE  FIRST  EDITION.  Vli 

I  have  still,  however,  availed  myself  very  largely  of  Dr.  Green- 
leaf's  labours,  having  adopted,  with  but  few  alterations,  his  ex- 
cellent general  arrangement,  having  followed  to  a  considerable 
extent  the  course  even  of  his  sections,  and  having  borrowed  many 
pages  of  his  terse  and  luminous  writing.  My  object  has  been  to 
afford  to  the  profession  really  useful  and  accurate  information;  and 
whether  that  information  were  conveyed  in  my  own  or  in  another's 
language,  has  been  to  me,  as  it  will  doubtless  be  to  my  readers,  a 
matter  of  indifference. 


From  the  American  decisions  cited  by  Dr.  Greenleaf,  I  have 
made  a  selection,  having  referred  to  such,  as,  in  my  judgment, 
either  afforded  favourable  illustrations  of  doubtful  points  of  law,  or 
laid  down  rules  superior,  to  those  adopted  in  our  own  Courts. 


With  the  view  of  rendering  my  work  useful  to  the  practitioner  in 
Ireland,  I  have  noticed  most  of  the  leading  decisions  of  the  Four 
Courts  on  the  Law  of  Evidence,  and  have  referred  to  many  Irish 
Statutes  on  the  same  subject. 


In  stating  what  the  law  is,  I  have  not' been  unmindful  of  what, 
in  my  humble  opinion,  it  ought  to  be  ;.  and  I  have  therefore 
ventured  from  time  to  time,  to  poiilt  out  briefly  such  alterations 
in  the  law  as  I  conceive  would  effect  material  amendments.  The 
JLaw- Reformer,  by  referring  to  the  Index,  Title,  *'  Suggestions  for 
Amending  the  Law  of  Evidence,"  will  find  what  I  have  done  on 
this  head. 


The  book  contains  no  chapter  on  the  Law  of  Stamps.     This 
omisson  might  perhaps  be  justified  by  simply  referring  to  the  able 

works  of  Messrs.  Phillipps  and  Starkie,  in  the  former  of  which  the 

(2745) 


viii  EXTRACTS  FROM  THE  PREFACE  TO  THE  FIRST  EDITION. 

subject  is  not  treated,  while  in  the  latter,  it  occupies  a  very  subor- 
dinate place  in  the  third  volume.  But  the  reasons  which  chiefly 
influenced  me  in  deciding  to  reject  the  Law  of  Stamps,  were,  1st, 
that  it  has  been  already  discussed  at  large  in  several  distinct 
treatises  ;  2nd,  that  any  exposition  of  it,  to  be  of  practical  value, 
must  have  added  much  to  the  bulk  of  the  work,  and  consequently 
to  its  price  ;  3rd,  that  it  would  have  delayed  the  publication  for 
many  months  ;  4th,  that  this  branch  of  the  law  will  probably  ere 
long  undergo  very  extensive  changes;  and  last, — though  I  confess 
not  least, — that  it  is  one  of  the  most  repulsive  subjects  which  could 
be  selrcted  by  an  author  for  discussion. 

In  a  work  of  this  magnitude,  treating  as  it  does  of  a  fluctuating 
branch  of  the  law,  I  am  well  aware  that  many  mistakes  must  have 
occurred  ;  for  these,  my  only  apology  is,  that  I  have  spared  no 
labour  to  avoid  them.  The  language  of  St.  Augustine  is  an 
author's  best  consolation: — "  Illi  in  vos  sseviant,  qui  nesciunt  cum 
quo  labore  verum  inveniatur,  et  quam  difficile  caveantur  errores." 


J.  PITT  TAYLOR. 


2,  Habcourt  Buildings,  Temple, 
lOih  February,  1848. 


(2746) 


CONTENTS. 


PAGB 


Summary ix — xii 

List  of  Abbreviations,  &c xiii — xxiv 

Table  of  Cases  cited xxv — ci 

Table  of  Statutes  cited cii — cxvii 

Tables  of  Riiles  and  Forms  of  Supreme  Court  cited  .  cxviii — cxix 

Table  of  Rules  and  Forms  of  County  Courts  cited  .    .  cxx 

Addenda  and  Errata cxxi — cxxv 


SUMMARY. 


PART  1. 

NATURE  AND  PRINCIPLES  OF  EVIDENCK 

CHAPTER  I. 
Preliminary  Observations 1,  2 

CHAPTER  II. 
Matters  judicially  noticed  without  Proof  ....  3 — 28 

CHAPTER   III. 

How  questions  of  fact  tried — Functions  of  Judge 

in  Jury  trials 29—70 

('2747) 


X  SUMMARY. 

CHAPTER  IV. 

PAOB 

The  Grounds  of  Belief 71—89 

CHAPTER  Y. 

Pivsiuriptive  Evidence 90 — 282 

PART  II. 

RULES  GOVERNING  THE  PRODUCTION  OF  TESTIMONY. 

CHAPTER  I. 

Correspondence  of  Evidence  with  Allegations ; 
Substance  of  Issue  ;  Variance  ;  and  Amend- 
ment          283 — 288 

CHAPTER  II. 
Confining  Evidence  to  Points  in  Issue 289 — 840 

CHAPTER   III. 
Burthen  of  Proof 841—864 

CHAPTER  IV. 
Best  Evidence 365—89.5 

CHAPTER  V. 
Secondary    Evidence 896 — 496 

CHAPTER  VI. 
Evidence  addressed  to  the  Senses 497 — 505 

CHAPTER  VII. 
Hearsay 606 — 586 

(2748) 


SUMMARY.  Xi 

CHAPTER  yill. 
Matters  of  Public  and  General  Interest 537 — 559 

CHAPTER   IX. 
Matters  of  Pedigree 500 — 579 

CHAPTER  X. 

Ancient  Possession 580 — 587 

CHAPTER  XI. 
Declarations  against  Interest 588 — 611 

CHAPTER  XII. 

Declarations  in  the  course  of  Office  or  Business  .    .  612 — 624 

CHAPTER  XIII. 
Dying  Declarations 625 — 682 

CHAPTER    XIV. 
Admissions 633—788 

CHAPTER  XV. 
Confessions 739 — 780 

CHAPTER  XVI. 
Evidence  excluded  on  grounds  of  Public  Policy     781 — 818 

CHAPTER  XVII. 
Matters  not  Provable  by  single  Witness  ....  819 — 833 

CHAPTER  XVIII. 

Matters  requiring  to  be  evidenced  by  Writings    835 — 959 

(2749) 


xii  SUMMARY. 

CHAPTER  XIX. 

PAGB 

Admissibility  of  Parol  Evidence  to  affect  Writ- 
ten Instruments 960—1046 


PART  III. 

INSTRUMENTS  OF  EVIDENCK 

CHAPTER  I. 

Witnesses,   and   the  means  of  procuring  their 

Attendance 1047—1136 

CHAPTER  II. 
Competency  of  Witnesses •    •    •      ^^^'^ — ^^^ 

CHAPTER   III. 

Evidence   by  Affidavit,   and   Examination   of 

Witnesses 1186—1264 

CHAPTER  IV. 
Public  Documents 1265—1518 

CHAPTER  V. 
Private  Writings 1519—1596 

Appendix 1597—1600 

Txx^Kx 1601—1810 

(2750) 


A  LIST 

OP 

t!L\^t  iltbrctJiatioitsi  usetr  in  tijis  Creatine. 

THE  TOGETHER  WITH  A  STATEMENT  OP 

EDITIONS  OF  THE  PRINCIPAL  ELEMENTARY  WORKS  CITED. 


Note. — The  letteis  A.  B.  C.  D.  appended  to  the  American  Reports,  denote  the  rela- 
tive estimation  in  lohich  those  Reports  are  held  by  the  profession  in  gen- 
eral, out  of  the  particular  State  where  the  decisio7is  ^oere pronounced:  A. 
marking  the  highest  degree  of  excellence.  A  very  eminent  American, 
jurist  has  kindly  furnished  the  Author  with  this  guide. 


ABBREVIATIONS.  NAME   OF  WORK,    ETC. 

A.  &  E Adolphus  &  Ellis's  Reports,  King's  Bench.     12  vols. 

Aberc.   on  Intell.  \  Abercrombie  on  the  Intellectual  Powers.     6th  ed.     Ediii- 

Pow /  burgh,  1836. 

Adam's  Ant.   .    .    .  Adam's  Roman  Antiquities. 

Addis Addison's  Reports,  Pennsylvania,  1791 — 1799.     lvol.(C. ) 

Add Addams'  Ecclesiastical  Reports.     3  vols. 

Aik Aiken's  Reports,  Vermont.     1826—1827.     2  vols.  (B.) 

A.  K.  Marsh.  .  .  A.  K.  Marshall's  Rep., Kentucky.  1817—1821.  3  vols.  (D.) 
Ale.  &  Nap.  .  .  .  Alcock  &  Napier's  Reports,  King's  Bench,  Ireland.  1  vol. 
Alcia.  de  Praes.  .    .  Alciatus  de  PriTSumptione.  Alciati  Opera,  Basilese.   1H."2. 

4  tom.  fol. 

Alison,  Cr.  L.     .    .  Alison's  Principles  of  the  Criminal  Law  of  Scotland. 

A,  r  '        \  Alison's  Practice  of  the  Criminal  Law  of  Scotland. 

Am.  Ed American  edition. 

Am.  Jur American  Jurist.     Boston. 

Amb Ambler's  Reports,  Chancery.     2  vols. 

And Anderson's  Reports,  Common  Pleas.     1  vol. 

Andr Andrew's  Reports,  King's  Bench.     1  vol. 

Anstr Anstruther's  Reports,  Exchequer.     3  vols. 

Anthon,    ...        .  Anthon's  Nisi  Pr.  Rep.,  New  York.  1808— 1818.  1  vol.(D.) 

Applet Appleton's  Reports,  Maine,  from  1841.     1  vol.  (C.) 

Arch.  Cr.  PI.  .    .    .  Archbold's  Criminal  Pleading.     16th  ed.,  1867. 

Arm.  M.  &  O.     .    .  .Armstrong,  Macartney  &  Ogle's  Rep.,  Nisi  Pr.  Irel.    1vol. 

Arm.  &  T Armstrong  &  Trevor's  Rep.  of  R.  r.  O'Connell,  Dub.,  1S41. 

Atk Atkyus's  Reports,  Chancery.     3  vols. 

Att.  Gen Attorney-General. 

Ayliife  Par.     .    .    .  Aylifte's  Paregon,  2nd  edition,  1734. 

B.  &  A Barnewall  &  Alderson's  Reports,  King's  Bench.      5  vols. 

B.  &  Ad Barnewall  &  .\dolphus'  Reports,  King's  Bench.     5  vols. 

B.  &  B Broderip&  Bingham's  Reports,  ConiTnon  Pleas.     3  vols. 

B.  &  C Barnewall  &  Cresswell's  Reports,  King's  Bench.     10  voLs. 

(2751) 


XIV 


ABBREVIATIONS,  ETC 


AIIBUEVIATIONS. 

B.  &  Lush.  A  dm.  . 

B.  &  P 

B.  &  S 

Bac.  Ab 

Bail 

Bail.  Ct.  Cas.      .    . 

Ball  &  B 

Barnes, 

Battv 

Bay 

Bavl.  Bills.      .    .    . 

Beav 

Bell,  C.  C 

Bell,  m^r 

Benth.  Ev 

Best.  Ev.      .    .    . 
Bibb, 

iiing 

Bing.  N.  S.      .    .    . 

Binn 

Bp.of  Tasm.  Lect.  1 
on  Chr.  Cat.    .    f 

Bl.  Com 

II.  Bl 

W.  Bl 

Bland,  Ch 

Blackf. 

Bliirh, 

Bli^'h.  N.  S.     ... 

B.  N.  P 

Bolt, 

Br.  C.  C 

Br.  P.  C 

Bridg 

Bro.  Abr.      .    .    . 
Broom,  Max.  .    .    . 

Browne, 

Brownl 

Buck 

Bulst 

Bunb.    .    .    . 
Burge,    Com.    on 

Col.  &  For. 
Burn,  Ec.  L. 
Burn,  Just. 
Burnet,  Cr.  L 
Burr.     .    .    . 
Burr.  S.  C.  . 
Bvles,  Bill.s, 
Bynk.   Obs.    Jur. 

Rom.     .    . 

C.  &  J.  .  . 
C.  &  Kir.  . 
C.  &M.  .  . 
C.  M.  &  R.  . 
C.  &  iVIarsh. 
C.  &  P.  . 
Cab.  &E1. 
Caines.      .    . 


on  \ 

L.  r 


NAMK  OF   WORKS,    ETC. 

Browning  and  Lushington's  Admiralty  Reports.     1  vol. 
Bosanquet  &  Puller's  Reports,  Common  Pleas.     3  vols. 
Best  «St  Smith's  Queen's  Bench  Reports.     10  vol.s. 
Bacon's  Abridgment. 

Bailey's  Reports,  South  Carolina,  1828—1832.  2  vols.  (B.) 
Lowndes  &  Maxwell's  Bail  Court  Cases,  1852.     1  vol. 
Ball  &  Bcatty's  Reports,  Chancei-y,  Ireland.     2  vols. 
Barnes's  Xotes  of  Practice  Cases  in  Common  Pleas. 
Batty's  Reports,  King's  Bench,  Ireland.     1  vol. 
Bay's  Reports,  South  Carolina,  1783—1804.  2  vols.  (B.C.) 
Bayley,  J.,  on  Bills  of  Exchange.     6th  ed.  London,1849. 
Beavan's  Reports.  Rolls  Court.     36  vols. 
Bell's  Crown  Cases  Reserved,  1859.     1  vol. 
Bell's  Digest  of  the  Laws  of  Scotland. 
Bentham's  Rationale  of  Jud.  Evid.    5  voLs.   Lond.,  1827. 
Best's  Principles  of  Law  of  Evid.  London.  3rd  ed.  1860. 
Bibb's  Reports,    Kentucky,  1808—1817.     4  vols.  (D.) 
Bingham's  Reports,  Common  Pleas.     10  vols. 
Bingham's  Reports,  New  Series,  Common  Plea.s.     6  vols. 
Binney's  Reports,  Pennsylvania,  1799 — 1814.  6  vols.  (A.) 

Bishop  of  Tasmania's  T>ectures  on  the  Christian  Chatecism. 

Blackstone's  Commentaries. 

Henry  Blackstone's  Reports,  Common  Pleas.     2  vols. 

Sir  AVilliam  Blackstone's  Reports  (K.  B.  &  C.  P.).    2  voLs. 

Blaiul's  Chancery  Rep.,  Maryland,  1811—1830.  2  vols. (C.) 

Blackford's  Reports,  Indiana,  1817—1838.  4  vols.  (CD.) 

Bligh's  Reports,  House  of  Lords.  4  vols. 

Bligh's  Reports,  New  Series,  House  of  Lords.    11  vols. 

Buller's  Law  of  Nisi  Prius. 

Bott's  Poor  Laws. 

Brown's  Chancery  Cases.     4  vols. 

Brown's  Parliamentary  Cases.     8  vols. 

Sir  O.  Bridgman's  Judgments  in  Common  Pleas.      1  vol. 

Brooke's  Abridgment. 

Broom's  Lejjal  Maxims.     .3rd  ed.     London,  1858. 

Browne's  Reports,  Pennsylvania,  1806—1814.  2  vols.  (C.) 

Brownlow's  Reports,  Common  Pleas.     1  vol. 

Buck's  Reports  in  cases  of  Bankruptcy.     1  vol. 

Bulstrode's  Reports,  King's  Bench.     1  vol. 

Bunbury's  Reports,  Excheqiier.     1  vol. 

Burge's  Commentaries  on  Colonial    and  Foreign  Laws. 

4  vols.     London,  1838. 
Bum's  Ecclesiastical  I>aw.     9th  ed.     London,  1842. 
Burn's  Justice  of  the  Peace,  by  Chitty.     29th  ed.     1845. 
Burnet  on  Criminal  Law  of  Scotland. 
Burrow's  Reports,  King's  Bench.     5  vols. 
Burrow's  Settlement  Cases,  King's  Bench.     1  vol. 
Byles,  J.,  on  Bills  of  Exchange.     8th  ed.     London,  1862. 

Bynkershoek,  lAhr\  Observationum  Juris  Romani. 

Crompton  &  Jervis's  Reports,  Exchequer.     2  vols. 
Carrington  &  Kirwan's  Nisi  Prius  Reports.     3  vols. 
Crompton  it  Meeson's  Reports,  Exchequer.     2  vols. 
Crompton,  Meeson,  and  Roscoe's  Rep. ,  Exchequer.  2  vols. 
Carrington  &  Marshman's  Nisi  Prius  Reports.     1  vol. 
Carrington  it  Pavne's  Nisi  Prius  Reports.     9  vols. 
Cabab^  &  Kllis'  Nisi  Prius  Reports,  1883,  1884. 
Caines's  Reports,  New  York,  1803—1805.     3  vols.  (A.) 
(2752) 


ABBREVIATIONS,    ETC. 


XV 


•.} 


Civ. 


ABBREVIATIONS. 

Cald      

Calv.  Lex    .... 

Camp 

Cane.  Leg.  barb.    1^ 

ant J 

Carpz.        Pract 

Rer.  Cr 
Carr.  Cr.  L      .    . 

Carth 

Ca.s.  temp.  Hard. 
Ca.s.  temp.  Lee, 
Channing,  .  .  . 
Chit.  Bills  .  .  . 
Chit.  Cr.  L  .  .  . 
Chit.  Forms,    .    . 

Chit.  Gen.  Pract. 
Chit,  on  PI. 
Chit.  K. 
Cic.  Fam.  Ep. 
City  Hall  Rec. 

CI.  &  Fin.    . 

Co 

Co.  Lit. 
Cock.  &  R. 
Cod.  Lib.      . 
Code  de  Proc. 
Coll   .... 
Com      .    .    . 
Com.   B.   .    . 
Com.  B.,  N.  S 
Com.  Di.      . 
Com.  J.    .    . 
Com.  Rep. 
Comb. 

Conklin's  Pr. 
Conn.  .  . 
Cons.  Ord.  Ch 
Cons.  R. 
Const.  R. 
Const.  &  Can. 
Const.  U.  S.  .\mend 
Cooke  &  Ale. 
Cooke,  .  .  . 
Coop.  .  . 
Cor.  .  .  . 
Corner,  Cr.  Pr 
Covvell's  Ind. 
Co  wen,  .  . 
Cowp.  .  . 
Co.x,  Ch.  R. 
Cox,  .  .  . 
Coxe,  .  .  . 
Cr.  &  Ph 
Cranch,  .  . 
Crawf.  &  D.,  Abr.  C 
Crawf.  &  D.,  C.  C 
Cro.  Car.  .    .    . 


1860 


App, 


NAME  OF  WORK,    ETC. 

Caldecott's  Reports  of  Settlement  Cases.     1  vol. 
Calvini  Lexicon  Juridicum  Juris  Ca>.sarii.  Gen.,  1615,  fol. 
Campbell's  Nisi  Prius  Reports.     4  vols. 
Canciani,  Leges  barbarorum  antiquae.     Venetiis,  1781 — 

ITS.").     5  vols.  fol. 
Carpzovii,    Practicse  Rernm   Criminalinm.     Francof.  ad 

Ma;nura,  1758.     3  vols.  fol. 
Carrington's  Supplement  of  Treatises  on  Criminal  Law. 
Carthew's  Reports,  King's  Bench.     1  vol. 
Cases  in  the  time  of  Lord  Hardwicke.     1  vol. 
Ecclesiastical  Reports  in  the  time  of  Sir  G.  Lee.     2  vols. 
Channing's  AVorks.    5  vols,    ord  edition.    Glasgow,  1S4(). 
Chitty  on  Bills  of  Exchange.    9th  edition.   London,  1840. 
Chitty'sTreatise  on  Criminal  Law.   2nd  ed.  London,  1826. 
Chitty's  Forms  of  Practical  Proceedings  in  Common  Law 

Courts.     6th  ed.     London,  1847. 
Chitty's  General  Practice. 

Chitty  Senior,  on  Pleading,     7th  ed.     London,  1844. 
Chitty's  Reports,  King's  Bench.     2  vols. 
Ciceronis  Familiares  Epistolse. 
New  York  Recorder,  containing  Reports  of  Cases  in  City 

Courts  from  1816  to  1821.     6  vols. 
Clark  &  Finnelly's  Reports,  House  of  Lords.     12  vols. 
Lord  Coke's  Reports.     Loudon,  1826.     6  vols. 
Coke  on  Littleton. 

Cockburn  &  Rowe's  Election  Cases.     1  vol. 
Codex  Thcodosianus,  Jacobi  Gothofredi. 
Code  Napoleon  de  Procedure  Civile. 
Collyer's  Chancery  Reports.     2  vols. 
Commonwealth. 

Manning,Granger,  it  Scott's  Common  Bench  Rep.  18  vols. 
New  Series  of  Common  Bench  Rep.  by  John  Scott.  20vols. 
Comyn's  Digest. 

Journals  of  the  House  of  Commons. 
Comyn's  Reports.     All  the  Common  Law  Courts.    2  vols. 
Comi)erbach's  Reports   King's  Bench.     1  vol. 
Conklin's  Practice  of  Cts.of  United  States,New  York,1842. 
Connecticut  Reports,  by  T.  Day,  1814-1848.    15  vols.(B), 
Consolidated  General  Orders  of  the  Ct.  of  Chancery,  1860. 
Haggard's  Consistory  Repoi-ts.     2  vols. 
Constitutional  Rep..'S.  Carolina,  1812—1810.  2vols.rB.C.) 
Constitutions  and  Canons  Ecclesiastical. 
Amended  Constitution  of  the  United  States. 
Cooke  &  Alcock's  Rep.,  King's  Bench,   Ireland.     1  vol. 
Cooke's  Reports,  Tennessee,  1811— 1S14.     1  vol.  (D.) 
Charles  Purton  Cooper's  Cases  in  Chancery.     1  vol. 
St.  Paul's  Epistle  to  the  Corinthians. 
Corner'sCrown  Practice  in  Queen's  Bench.  London, 1844. 
Cowell's  Indian  Appeals. 

Co  wen's  Reports,  New  York,  1823—1828.     i)  vols.   (A.) 
Cowper's  Reports,  King's  Bench.     2  vols. 
Cox's  Reports.  Chancery.     2  vols. 
Cox's  Criminal  Law  Cases.     13  vols. 
Coxe's  Reports,  New  Jersey,  1790—1795.     1  vol.  (C.) 
Craig  &  Phillips'   Reports,  Chancerv.      1  vol. 
Cranch's  Rep..  Sup.  Ct.  of  U.  S.,  ISOO- 1815.  9  vols.  (A.) 
Crawford  &  I)i.x's  Abridged  Cases  in  Ireland.     1  vol. 
Crawford  &  Dix,  Irish  Circuit  Reports.     3  vols. 
Croke's  Reports  in  the  Reign  of  King  Charles  I. 
(2753) 


XVI 


ABBREVIATIONS.    ETC. 


ABBBEVIATIONS. 

C!ro.  El.        ... 
('ro.  Jao.       .    .    . 
Cruise,  Dign. 
Cujac.  Op.   Posth. 
Curt      ... 

Cush 

Cy.  Ct.  I{ 
Cy.  Ct.  R 

D.  &  M 

D.  &  K.        ... 
D.  &  R.  Mag.  Ca. 
D  &  R.,  N.  P.  C 
Dalison. 
Dall       ; 


O.  &  F 

1875  . 


Halt  .    . 
Dan.   Ch. 


Pr. 


Dane,  Abr. 
Danty.      .    . 
Davidson,  Cone. 

Dav 

Dea.  &  C 

Dea.  &  Sw.  Ec.  : 
Deane,  Ec.  R. 
Deane,  Verm.  J 
Dear.  &  Bell, 
Dec.  Greg. 
De  Gex,  F.  &  J. 
De  Gex  &  J. 
De  Gex,  J.  &  S. 
De  Gex,  M.  &  G 
De  Gex  &  Sm. 
Den.      .    .    . 
Dev.      .    .    . 
Dev.  &  B. 


Dick      .    .    . 
Dick.  Quar.  Sess, 
Dick.son,  Ev. 
Dig.  Lib.      . 
Doct.  &  Stu. 
Dods.  Adm. 
Dom.  Proc. 
Doug.        .    . 
Dow,     .    .    . 
Dowl.    .    .    . 
Dowl.  N.  S. 
D:)wl.  &  L. 
Dr.  &  St.     . 
Drew.       .    . 
Drew.  &  Hv.:. 
Drury,  Ch.  II. 
Drn.  &  W:  •. 
Dyer,        .    . 
E.  &  B.     .    . 
E.  B.  &  E. 
E.  &  E.     .    . 
Eag.   &  Y. 


Pr 


NAME   OF   WORK,    ETC. 

Croke's  Reports  in  the  Reign  of  Queen  Elizabeth. 

Croke's  Reports  in  the  Reign  of  King  .Iame.s, 

Cruise  on  Dignities  or  Titles  of  Honour. 

Cujaccii  Opera  Posthuma. 

Curteis'  Ecclesiastical  Reports,     .'i  vols. 

Cushing's  Rej).  Su)ireme  Court  of  Massachusetts.     9  vol.s. 

County  Court  Rules,  Orders  and  Forms,   lf^()8. 

Consoi.  County  Court  Orders,  Rules,  and  F'orms,  187.5. . 

Davison  it  ^Icrivale's  Reports,  Queen's  Bench.     1  vol. 

Dowling  &  Ryland's  Reports,  King's  Bench.     9  vols. 

Dowling  &  Ryland's  INIagistrates'  Cases.     4  vols. 

Dowling  iSc  Ryland's  Nisi  Prius  Cases.     1  vol. 

Benloe  &  Dalison's  Reports,  Com.  PI.     1  vol. 

Dallas's  Rejjorts.    Supreme  Courts  of  United  States,  and 

Pennsylvania,  17!)0— 1806.     4  voLs.  (A.) 
Dal  ton's  Country  .Ju.stice,   Ed.,  1697. 
Daniell's  Chancery  Practice.     4th  ed.,  by  Messrs.  Field, 

Dunn,  &  Biddle.     London.     1865—1867. 
Dane's  Abridgment,  United  States. 
Traite  de  la  Preuve.     Paris,  1697,  4to. 
Davidson's  Concise  Precedents  of  Conveyancing. 
Day's  Reports,  Connecticut,  1802—1810.     5  vols,  (B.) 
Deacon  &  Chitty's  Reports,  Bankruptcy.     4  vols. 
Deane  &  Swabey's  Ecclesiastical  Rep,     London.     1  vol. 
Deane's   Ecclesiastical   Reports.     London,  1856.     1  vol. 
Deane's  Reports.     Supreme   Court  of  Vermont.     3  vols. 
Dearsley  &  Bell's  Crown  Cases  Reserved.     1  vol. 
Decretals  of  Pope  Gregory  IX. 

De  Gex,  Fisher  &  .Tones,  Chancery  Appeals.     4  vols. 
De  Gex  &  Jones,  Chancery  Appeals,   1857.     4  vols. 
De  Gex,  Jones,  &  Smith,  Chancery  Appeals.     4  vols. 
DeGex,  Macnaghten,  &  Gordon,  Chancery  Appeals, 8  vols. 
DeGex  &  Smale's  Rep.,  V.-C.  Knight  BrUce's  Ct.  5  vols. 
Denison's  Crown  Cases  Reserved.     2  vols. 
Devereux's  Rep.,  North  Carolina,  1826—1834.  4  vols.(B.) 
Devereux  &  Battle's   Rep.,  North  Carolina,  1834—1840. 

4  vols.  (B). 
Dickens's  Rejjorts,  Chancery.     2  vols, 
Dickinson's   Quarter  Sessions.     6th  ed.     London,  1846. 
Dickson  on  Evidence  in  Scotland.  2  vols.  Edinburgh,  1855. 
Digests  of  Civil  Law. 
Doctor  and  Student. 

Dodson's  Rejiorts,  Court  of  Admiralty.     2  vols. 
House  of  Lords. 

Douglas's  Rej)orts,  King's  Bench,  4  vols. 
Dow's  Reports,  Hou.se  of  Lords,  6  vols. 
Dowling's  Practice  Cases,  Old  Ser.  Com.  Law  Cts.  9  vols. 
Dowling's  Practice  Cases,  New-  Series.     The  same,  2  vols. 
Dowling  &  Lowndes's  Practice  Cases.     The  .same,  7  vols. 
Doctor  and  Student. 

Drewry's  Rep.  of  Decisions  by  Kindersley,  V.-C,  4  vols. 
Drewry  &  Smale's  Rep.  in  same  court,  2  vols. 
Drury 's  Irish  Chancery  Rep.,  temp.  Sugden,  Ch.  1  vol. 
Drury  &  Warren's  Reports,  Chancery,  Ireland,  4  vols. 
Dyer's  Reports,  King's  Bench.     3  vols. 
lOnis  &  Blackburn's  Queen's  F.ench  Reports,  8  vols. 
Ellis,  Blackburn,  &  Ellis's    Queer.".,  Bench  Rep.,   1  vol. 
Ellis  tt  Ellis's  Queen's  Bench  Reports.  3  vols. 
Eagle  &  Younge's  Reports  of  Tithe  Cases.     4  vols. 
(2754) 


ABBREVIATIONS,  KTO.  XVll 

ABBREVIATIONS.  NAMK  OP  WOIIK,  ETC. 

East, East's  Reports,  Kiiiij's  Bench.     16  vols. 

Ea.st,  P.  C East's  Pleas  of  the  Crown. 

Ec.  &  Mar.  Cas.  Notes  of  Cases  in  Ecclesl.  &  Maritime  Cts.  Lond.  7  vols. 

Edinb.  Rev.     .    .    .  Edihbuijz;  RevieAV. 

Eq.  Cas.  Ab.    .    .    .  Equity  Cases  Abridged.     2  vols. 

Ersk.  Inst Erskine's  Institutes  of  the  law  of  Scotland. 

Esp Espiuasse's  Nisi  Prius  Reports.     6  vols. 

Everli.  Cone.    .    .    .  Everhardi  Coju-ilia.     Antwerp,  1643,  fol. 

Ex.  R Exch.  Rep.,  by  Welsby,  Hurlestone,  &  Gordon.    11  vols. 

Fairf. Fairfield's  Reports,  Maine,  18:^3—1835.     3  vols.  (B.) 

Farin.  Op Farinacii  Opera.    Francof.  ad  Maenum,  1684.    4  vols.  fol. 

Ff. Pandccta  Juris  Civilis. 

Fitzg Fitzgibbon's  Reports.     All  the  Courts.     1  vol. 

Forrest, Forrest's  Reports,  Exchequer.     1  vol. 

Fost.  C.  L Sir  M.  Foster's  Crown  Law,  3rd  ed.,  1792. 

Fost.  &  Fin.    .    .    .  Foster  <St  Finlasou's  Nisi  Prius  Reports.     4  vols. 

Fox  &  Sra Fox  Sc  Smith's  Reports,  King's  Bench,  Ireland.     2  vols. 

Freem Freeman's  Reports.     1  vol. 

O.  &  D Gale  &  Davison's  Reports,  Queen's  Bench.     3  vols. 

Gale, Gale's  Reports,  Exclieciuer. 

Gall Gallison's  Reports,  United  States,  1st  Circuit  Court,  1812 

— 1815.     2  vols.  (A.)     Judge  Story's  Decisions. 

Gamb.  Guide,     .    .  Gambier's  Guide  to  the  Study  of  Moral  Evidence. 

Gibson,  Cod.   .    .    .  Gibson's  Codex  Juris  Ecclesiastic!  Anglican!. 

Gitr.      Giffiird's  Reports,  V.-C.  Stuart's  Court.     4  vols. 

Gill).  Eq.  R.    .    .    .  Gilbert's  Equity  Reports.     1  vol. 

Gilb.  Ev Gil])ert  on  Evidence,  by  Lofft. 

Gill.  &.  J Gill&Johnson'sRep.,Maryland,  1829— 1840.  10 vols. (B.) 

Glassf.  Ev Glassford  on  Evidence,  Edinburgh,  1820. 

Godb Godbolt's  Reports.     1  vol. 

Gow, Gow's  Nisi  Prius  Reports.     1  vol. 

Gr.  Ev Greenleaf  on  Evidence. 

Gray, Gray's  Reports,  Supreme  Court  of  Massachusetts.  2  vols. 

Greenl.     .....  Greenleaf 's  Reports,  Maine,  1820— 1832.     9  vols.  (B.) 

Greenl.  on  Test.    \  Dr.  Greenleaf  on  the  testimony  of  the  Evangelists,  2nd 

of  Evang.     .    .  J  ed.,  London,  1847. 

Gresl.  Ev Gresley  on   Evidence  in   Courts  of  Chancery,  paging  of 

1st  ed.  retained  in  margin  of  2nd  ed.,  1847,  London. 

Gwill Gwillim's  Reports  of  Statutes  and  Cases  on  Tithes. 

H.  Bl Henry  Blackstone's  Reports,  Common  Pleas.     2  vols. 

H.  &  C Hurlestone  &  Coltmau's  RepDrts,  Exchequer.     4  vols. 

H.  of  L.  Cas.  .    .    .  House  of  Lord's  Cases,  by  Clark.  11  vols. 

11.  &  N Hurlestone  &  Norman's  Reports,  Exchequer.     7  vols. 

H.  &  R Harrison  &  Rutherford's  Rep.,  Common  Pleas.     1  vol. 

Hagg.  Cons.     .    .    .  Haggard's  Consi.story  Reports.     2  vols. 

Hagg.  Ec.  R.  .    .    .  Haggard's  Ecclesiastical  Reports.     4  vols. 

Hale, Lord  Hale's  Pleas  of  the  Crown.' 

Hale  de  Jur.  Mar.  .  Lord  Hale's  Treatise  de  Jure  Maris. 

Hall  &  T ■  Hall  and  Twell's  Reports  in  Chancery.     2  vols. 

Halst.   .• Halstead's  Reports,  New  Jer.sey,  1821— 1831.    7  vol.s.(C.) 

Har.  &G Harris  &  Gill's  Rep.,  Maryland,  1826— 1829.    2  vols.  (B.) 

Har.  &  M'Hen.  .    .  Harris  &  M'Henry's  Rep., Maryland,  1790—1799.  4  vols. 

(D.) 

Har.  &  W Harrison  &  Wollaston's  Reports,  King's  Bench.     2  vols. 

Hardin, Hardin's  Reports,  Kentucky,  1805— 1808.     1  vol.  (D.) 

Hardr Hardres's  Reports.  Exchequer.     1  vol. 

Hare, Hare's  Rep.     V. -Cs.  Wigram  &  Turner's  Cts.     11  vols. 

Harg.  L.  Tracts,     .  Hargrave's  Law  Tracts. 

Harg.  St.  Tr.  .    .    .  Hargrave's  State  Trials.     11  vols. 
B  LAW  OF  EVID. — V.  I.  (2755) 


XVlll 


ABBREVIATIONS,  ETC. 


ABBREVIATIONS. 

llarr.  &  J.    .    .    . 


Hawk.  .  .  . 
Hawks,  .  .  . 
}[ayos,  .  .  . 
Haves  &  .Ion.  . 
Hayw.  .  .  . 
Heiii.  ad  Panel. 
Hem.  &.  M.  . 
Hen.  &  Munf. 

Hertius  de  Coll.  Leg 
Hill,  S.  Car.  R.  .  . 
Hill,  N.  Y.  R.     .    . 

Hob 

Hoffman  on   Leg, 
Study,  .... 

Holt,    ' 

Holt,  N.  P.    R.  .    . 
Hop.  &  Colt.   .    .    . 
How.  St.  Tr.    .    .    . 
Howard,    S.   Ct.    R 
Hubb.   Ev.   of  Sue, 
Hume,  Com. 
Humph.   .    . 
Hutt.    .    .    . 
Inst.      .    .    . 
I.  R.,  C.  L. 

I.  R..  Eq.     . 


Ir 

Ir.  Cir.  R.  .  . 
Ir.  Eq.  R.  .  . 
Ir.  Eq.R.,N.  S. 
Ir.  Law  R.  .  . 
Ir.LawR.,N.S. 
Iredell,  .  .  . 
J.  J.  Mar.sh.  . 
J.  Kel.      .    .    . 

Jac 

Jac.  &  W.    .    . 
Jacobsen's  Sea  L. 
Jebb.  C.  C.  .    . 
Jebb  &  B.    .    . 
Jebb  &  Sy.  .    . 

.Johns 

Johns.  Ch.  R. 
Johns.  &  Hem. 
Jones,  . 
T.  Jones, 
W.  .Ton. 
Jone.s  &  Lat. 
^oy  on  Conf. 
Jur.   .  . 
Jur.,  N.  S. 
Kay,   .  . 
Kay  &  J. 
Keb.   .  . 


NAME  OF  WORK,  ETC. 

Harris    &    Johnson's   Reports,    Maryland,    1800 — 1826. 
7  vols.  (B.) 

Hawkin's  Pleas  of  the  Crown. 

Hawks'  Reports,  North  Carolina,  1820—1826.    4  vols.(C.) 

Hayes'  Reports,  E.xchocjuer,  Ireland.     1  vol. 

Hayes  &  Jones'  Reports.  Exche(|uer,  Ireland.     1  vol. 

Haywood's  Reports,  North  Carolina,  1789 — 180().  (C.) 

Heineccius  ad  Pandectas.     5th  torn,  of  his  "Works. 

Hemming  &  Miller's  Rep,  in  V.-C.  Wood's  Court.    2  vols. 

Henning  &  Munford's  Rep.,  Virginia,  1806—1809.  4  vols. 
(C.)". 

Hertius  de  Collisione  Legura. 
^      Hill's  Reports.  South  Carolina,  1833—1835.    2  vols.  (B.C.) 
.      Hill's  Reports,  New  York,  1841—1842.      3  vols.  (B). 

Hobart's  Reports,  King's  Bench.     1  vol. 

>      Hoffman's  Course  of  Legal  Study,  2nd  ed.,  1836. 

Lord  Holt's  Reports.     1  vol. 
Holt's  Nisi  Prius  Reports.     1  vol. 
Hopwood  &  Coltman's  Registration  Cases.     2  vols. 
.      Howell's  State  Trials.     34  vols. 

Howard's  Rep.,  United  States,  Sup.  Ct.,  from  1843.    (A.) 

Hubback  on  Evidence  of  Succession,  London,  1844. 

Hume's  Commentaries  on  Criminal  Law  of  Scotland. 

Humphrey's  Reports,  Tennes.see,  1839-1841.  2  vols.(D.) 

Hutton's  Reports,  Common  Pleas.    1  vol. 

Coke's  Institutes. 

The  Iri.sh  Reports,  Common  Law  Series,  Dublin,  1867 — 

1878.    11  voLs. 
The  Iri.sh  Reports,  Equity  Series,  Dublin,  1867—1878. 

11  vols. 
Irish. 

Irish  Circuit  Reports.     1  vol. 
Iri.sh  Equity  Reports.     13  vols. 

Irish  Chancery  Reports,  New  Series,  1850.     17  vols. 
Irish  Law  Reports.     13  vols. 

Iri.sh  Common  Law  Reports,  New  Series,  1850.     17  vols. 
Iredell's  Reports,  North  Carolina,  1840—1841.  lvol.(C.) 
J.  J.  Marshall's  Rep.,  Kentucky,  1829—1832.  7vols.(D.) 
Sir  John  Kelynge's  Reports,  King's  Bench.  1  vol. 
Jacob's  Reports,  Chancery.     1  vol. 
Jacob  &  Walker's  Reports,  Chancery.      2  vols. 
Jacobsen's  Sea  Laws. 

Jebb's  Crown  Cases  Reserved,  Ireland.     1  vol. 
Jebb  &  Bourke's  Rep.,  Queen's  Bench,  Ii-eland.     1  vol. 
Jebb  &  Symes'  Rep.,  Queen's  Bench,  Ireland.     2  vols. 
Johnson's  Reports,  New  York,  1806—1823.     20  vol.s.(A.) 
Johnson's  Chan.  Rep.,  New  York,  1814—1823.  7  vols.(A.) 
Johnson  &  Hemming's  Rep.  in  Ct.  of  Wood, V.-C.  2  vols. 
Jones'  Exchequer  Reports,  Ireland.     2  vols. 
Sir  Thomas  Jones'  Reports.     1  vol. 
Sir  William  Jones'  Reports.     1  vol. 
Jones  &  Latouche's  Rep.,  Chancery,  Ireland.     3  vols. 
Joy  on  Confession  in  Criminal  Cases,  Dublin,  1842. 
Jurist  Reports.     All  the  Courts.       31  vols. 
Jurist  Reports,  New  Series.     All  the  Courts.     12  vols. 
Kay's  Reports  of  Decisions  of  Wood,  V.-C,  1853.     1  vol. 
Kay  &  Johnson's  Rep.  of  Decisions  of  Wood,  V.-C.   4  vols. 
Keble's  Reports,  King's  Bench.     3  vols. 
(2756) 


ABBREVIATIONS,  ETC. 


XIX 


Abbreviations. 
Keen,    .    .    . 

Kel 

Kent,  Com. 
Kirbv,      .    . 
Knapp,  P.  C.  E. 
Knapp  &  O. 
L.  &  Cave,  . 
L.  J.,  H.  L. 
L.  J.,  P.  C, 
L.  J.,  Ch.     . 
L.  J.,  Aclm. 
L.  J.,  Pr.  &  Mat. 
L.  J.,  Bk.     . 
L.  J.;  Q.  B. 
L.  J.,  C.  P. 
L.  J.,  Ex.     . 


L.  J.,  M.  C.    . 
L.  J.,  Ec.  C.    . 
L.  J.  (O.  S.)    . 
L.  M.  &  P.  .    . 
L.  R.,  Ch.  D. 
L.  li.,  Q.  B.  D 
L.  R..  C.  P.  D. 
L.  R.,  Ex.  D. 
L.  R.,  App.  Cas. 
L.  R.,  P.  D. 
L.  R..  Ir.      . 
LL.,  U.  S.    . 
Law  Mag.    . 
Law  May.,  N.  S. 
Law  R.     .    . 
Law  Rec.  1st  Ser, 

or  2nd  Ser.   . 
Law  Rep.,  H.  L 
Law  Rep. ,  H.  L.  Sc 
Law  Rep.,  P.  C 
Law  Rep.,  Ch.   Ap 
Law  Rep.,  Eq. 
Law  Rep.,  Q.  B. 
Law  Rep.,  C.  P. 
Law  Rep.,  Ex.    . 
Law  Rep.,  C.  C. 
Law  Rep.,  P.  &  D. 
Law  Rep.,  Adm.  1 

&  EC3.        ...    J 

Lea 

Leg.  Obs 

Leigh,  R 

Leon 

Lev 

Lew.  C.  C 

Lit.  R 

LIovd&G.      .    .    . 

Lofft 

Long.  &  T.      ... 

Lords'  J 

Ld.  Br.  Sp.      ... 

Ld.  Ray 

Lonis 


NAME  OF  WORK,    ETC. 

Keen's  Reports,  Chancery.     2  vols. 

Sir  John  Kelynge's  Reports.     1  vol. 

Kent's  Commentaries,  Boston,  1840. 

Kirby's  Reports,  Connecticut,  178")— 1788.     1  vol.  (D.) 

Knapp's  Privy  Council  Reports.     3  vols. 

Knapp  &  Ombler's  Ek-ction  Cases.     1  vol. 

Leigh  &  Cave's  Crown  Cases  reserved.     1  vol. 

Law  Journal  (New  Series),  House  of  Lords. 

Law  Journal  (New  Series),  Privy  Council. 

Law  Journal  (New  Series 

Law  Journal  (New  Series! 

Law  Journal  (New  Series) 

Law  Journal  (New  Series 

Law  Journal  (New  Series) 

Law  .Journal  (New  Series 

Law  .Journal  (New  Series! 

Law  Journal  (New  Series),  Magistrates'  Cases 

Law  .Journal  (New  Series),  Ecclesiastical  Cases. 

Law  .Journal  (Old  Series).     9  vols. 

Lowndes,  Maxwell,  and  Pollock's  Practice  Cases.    2  vols, 

Law  Reports,  Chancery  Division,  from  1st  Jan.,  1876. 

Law  Reports,  Queen's  Bench  Division,  from  1st  Jan.,  1876 

Ijaw  Reports,  Common  Pleas  Division,  from  1st  Jan.,  1876 

Law  Reports,  Exchec^uer  Division,  from  1st  Jan.,  1876. 

Law  Reijorts,  Appeal  Ca.ses,  from  1st  Jan.,  1876. 

Law  Reports,  Probate  Division,  from  1st  Jan.,  1876. 

Law  Reports,  Ireland,  from  Jan  1,  1878. 

Laws  of  the  United  States. 

Law  Magazine. 

Law  Magazine,  New  Series. 

Law  Review. 


Chancery. 
Admiralty. 

Probate  and  Matrimonial  Cts. 
Bankruptcy. 
Queen's  Bench. 
Common  Pleas. 
Exchequer. 


>     Law  Recorder,  1st  and  2nd  Series.     Irish.     10  vols. 

Law  Reports,  House  of  Lords. 

Law  Reports,  Scotch  Appeals  in  Hou.se  of  Lords. 

Law  Reports,  Privy  Council. 

Law  Reports,  Chancery  Appeals  (Ch.  &  L.-JJ. ) 

Law  Reports,  E(£uity  Cases  (M.  R.  &  V.-Ch.) 

Law  Reports,  Queen's  Bench. 

Law  Reports,  Common  Pleas. 

Law  Reports,  Exchequer. 

Law  Reports,  Crown  Cases  Reser\'ed. 

Law  Reports,  Probate,  Divorce,  and  Matrimonial. 

Law  Reports,  Admiralty  and  Ecclesiastical. 

Leach's  Crown  Cases.     4th  ed.,  London,  1815.     2  vols. 
Legal  Observer. 

Leigh's  Reports,  Virginia,  1829—1839.     9  vols.  (B.) 
Leonard's  Reports.  King's  Bench.     1  vol. 
Leviuz's  Rejjorts,  King's  Bench.     3  vols. 
LeAvin's  Crown  Cases  on  Northern  Circuit.     2  vols. 
Littleton's  Reports.     1  vol, 

Lloyd  &Goold's  Ir.  Chan.  Rep.,  temp.  Sugden,  Ch. 
Loti't's  Reports,  King's  Bench.     1  vol. 
LongfieldandTownsend'sRep.  Exchequer,  Ireland. 
Journal  of  the  House  of  Lords. 
Lord  Brougham  Speeches.     4  vols.     1838. 
Lord  Raymond's  Rep.,  King's  Bench  &  Com.  Pleas.   3  vols 
Reports  "of  Louisiana,  1830—1840.     16  vols.  (B.) 
(2757) 


IvoL 


IvoL 


XX  ABBJIEVIATIONS,  ETC, 

ABBREVIATIONS.  NAME  OF  WORK,    ETC. 

Liiilcrs Lnder's  Election  Civse.s.     3  voLs. 

Lusli.  Adiu.  K.  .    .  Admiralty  Koports,  by  Vernon  Lushington,  Esq.     1vol. 

Liitw ■  .  Lutwyclie's  Reports,  Common  Plea.s.     2  vols. 

;M Sir  F.  Moore's  Reports.     1  vol. 

;M.  cV-  Gord.      .    .    .  Macna<;hten  &  Gordon's  Rep')rt;-,  Ghancery.     3  vols. 

M.  iS:  Gr Manninjj;  A:  Gran<j;cr"s  Reports,  Common  Pleas.     7  vols. 

'M.  ,Sc  M Moody  &  Malkin's  Nisi  Prins  Reports.     1  vol. 

M.  &.  V Moore  &  Pa.yne's  Reports,  Common  Pleas.     5  vols. 

M.  tS:  ]\' Manning  «&  Ryland"s  Reports,  King's  Bench.     5  vols. 

M.  &  Rob ]\Ioody  &  Robinson's  Nisi  Prius  Reports.     2  vols. 

MS Manuscript. 

M.  &  Sc Moore  &  Scott's  Reports,  Common  Pleas.  •  4  vols. 

M.  &  Sel Moore  &  Selwyn's  Reports,  King's  Bench.     6  vols. 

M.  &  W IMeeson  &  Welsby's  Reports,  Exchequer.     16  vols. 

McC McCord's  Rep.  Simth  Carolina,  1820— 1828.   4  vols.   (B.C) 

McC,  Ch.  R.  .    .    .  McCord's  Chancerv  Reports,  South  Carolina,  1825 — 1827. 
2  vols.  (B.  C.) 

McClel McCleland's  Reports,  Exchequer.     1  vol. 

McClel  &  Y.    .    .    .  IMcCleland  &  Younge's  Reports,  Exchequer.     1  vol. 

Macq.   Pr.   in   H.  \  Macqueen's  Practice  in  the  House  of  Lords  and  Privy 

of  L.     .    :    .    .    (  Council. 

Macq.  Sc.  Gas.  H.  \  Macqueen's  Scotch  Cases  in  the  House  of  Lords,  1852. 

of  L /  4  vols. 

McDouall,  Inst.      .  McDouall's  (Ld.  Bankton)  Institutes  of  Law  of  Scotland. 

McKinnon,   Phil.  \  jyicKinnon's  Philosophy  of  Evidence, 
ol  Ev.  .    .    .    •   J  ^  ' 

McNagh.      Elem.  1  McNaghten's  Elements  of  Hindoo  Law. 

of  Hindoo  L.  .   J  '^ 

McNally,  Ev.      .    .  McNally  on  Evidence,  Ireland. 

Madd Maddock's  Reports,  Vice-Chanc.  Court.     6  vols. 

Magens, Magens  on  Insurance,  London.     1754. 

Mann.  Dig.  N.  P.  .  Manning's  Digested  Index  to  the  Nisi  Prius  Reports. 

Marsh Mar.shall's  Reports,  Common  Pleas.     2  vols. 

A.  K.  Marsh  .    .    .  A.  K.  Marshall's  Rep.  Kentucky,  1817— 1821.  3  vols.  (D.) 

J.  J.  Marsh.    .    .    .  J.  J.  Mar-shalPs  Rep.,  Kentucky,  1829— 1832.  7  vols.  (D.) 

Mart Martin's  Reports,  Louisiana,  1809— 1823.     12  vols.  (B.) 

Mart.,  N.  S.     ...  Martin's   Reports,   Nev/  Series,   Louisiana,   1823 — 1830. 

8  vols.  (B.)  . 

Mart.-,  N.  Car.  R.  .  Martin's  North  Carolina  Reports.     1  vol.  (D.) 

Mart.  &Y Martin  &Yerger's  Rep.,  Tennessee,  1825— 1828.  1vol. (D) 

Masc.  de  Prob.   .    .  Mascardus  de  Probationibus.     Francof.  ad  Msenum.     4 

vols.,  fol.,  1684. 

Mason.      Mason's  Reports,  United  States,  1st  Circuit  Court,  1816 

— 1830.     5  vols.  (A.).     Judge  Story's  Decisions. 

Mass Reportsof  Massachusetts,  1804— 1822.      (A.) 

Math.  Pres.  Ev.     .  Mathews' Treatise  on  Presumptive  Evidence.  Lond.  1827 

May,  L.  of  Pari.     .  May's  Law  of  Parliament,  5th  ed.     London.  1863. 

Menoch.  de  Praes.  .  MenochiusdePricsuinptionibus,  Geneva.',  1670,  2  torn.  fol. 

Mer Merivale's  Reports,  Chancerv.     3  vols. 

Mete Metcalf's  Reports,  Massachusetts,  1S40— 1846.     (A.) 

Milw.  Ec.  Ir.  R.     .  Mihvard's  Eccles.  Irish  Rep  ,  temp.  Dr.  Radcliffe. 

Min.Ev Minutes  of  Evidence  in  Peerage  Claim.s,  &e. 

Mitf.  on  PI.     .    .    .  Mitford  (Ld.  Redesdale)  on  Plead  in  Chanc,  5th  ed.   1847 

;Mod Modern  Reports.      All  the  Courts.     12  vols. 

Moll Molloy's  Reports,  Chancery,  Ireland.     3  vols. 

Mon.  &  Ayr.  .    .    .  Montagu  &  Ayrton's  Reports,  Bankruptcy.     3  vols. 

Mon.  &.  B.      ...  Montagu  &  Blight's  Reports.  Bankrnjjtcy.     1  vol. 

Mon.  D.  &  D.      .    .  Montagu,  Deacon,  &  UeGex's  Rep.  Bankruptcy.     3  vols. 

Mon.  &  McAj     .    .  Montagu  &  McArthur's  Reports,  Bankruptcy.     1  vol. 

(2758) 


ABBREVIATIONS,    ETC.  Xxi 

ABBREVIATIONS.  NAME  OF  WORK,    ETC. 

Monroe, Monroe's   Reports,  Kentucky,   1824—1828.     7  vols.  (D.) 

Moo.  C.  C Moody's  Crown  Cases  Keserved.     2  vols. 

Moo.   Ind.   App.  C.  Moore's  Indian  Appeals  to  Privy  Council.     14  vols. 

Mod.  p.  C.  R.  .    .    .  Moore's  Privj'  Council  Reports.     15  vols. 

Moo.  P.  C,  N.  S.    .  Moore's  Privy  Council  Reports,  New  Series.     9  vols. 

Moore,      John  Bayly  Moore's  L'cports,  Common  Pleas.     12  vols. 

Morison, Morison's  Scotch  lieports. 

Munf. Munford's  Reports,   Virginia,   1810—1820.     6  vols.  (C.) 

Murph Murphcy's  Reports,  North  Carolina,  1804—1819.     (C.) 

Myl.  &  Cr Mylne  &  Craig's  Reports,  Chancery.     5  vols. 

Myl.  &  K Mylne  &  Keen's  Reports,  Chancery.     3  vols. 

N.  &  M.   .....  Nevile  and  Manning's  Reports,  King's  Bench.     6  vols. 

N.  &  P Nevile  and  Perry's  Reports,  Queen's  Bench.     3  vols. 

N.  R Bosanquet  &  Puller's  New  Rep.,  Common  Pleas.     2  vols. 

N.  York  Civ.   Code,  The  Code  of  Civil  Procedure  of  New  York,  1850. 

N.York   Cr.    Code,  The  Code  of  Criminal  Procedure  of  New  York,  1850. 

Nalson's   Col.   of  |  Nalson's  Collection  of  State  Papers. 

fot.    i  Up.     ...     J 

New  Hamp.     .    .    .  Reports  of  New  Hampshire,  1816— 184.3.     (B.) 

New  R The  New  Reports  in  all  the  Courts.  London,  1862.  6  vols. 

New  Sess.  Cas.    .    .  New   Sessions  Cases,  by  Carrow,   Hammerton,  &  Allen. 

4  vols. 

Nott&M'C.    .    .    .  Nott&M'Cord'sRep.,S.  Carolina,  1817— 1820.  2 vols. (B.) 

Noy, Noy's  Reports,  King's  Bench.     1  vol. 

Ohio  R Hammond's  Ohio  Reports,  Ohio,  1821— 1839.  9  vols. (D.) 

Ought Oughton's  Ordo  Judicorum. 

Owen, Owen's  Reports,  King's  Bench  and  Common  Pleas.   1  vol. 

^   ^  ^3^'   ^°^   ^'  }  ^^^^^^  of  citing  the  Year  Books. 

P.  &  D Perry  &  Davison's  Reports,  Queen's  Bench.     4  vols. 

P.  Voet,  de  Stat.    .  Paul  Voet  de  Statutis. 

P.  Wms Peere  Williams'  Reports,  mostly  Chancerv.     3  vols. 

Paige, Paige's  Chan.  Rep.,  New  York,' 1828— 1844.   10  vols.  (B.) 

Paine, Paine's  Rep.,  Un.  States,  2ud  Circuit  Ct.,   1810—1826. 

1  vol.  (B.) 

Paine  &D.Pr.    .    .  Paine  &  Duer's   Practice   of  the  Courts  of   the   United 

States,  New  York,  1830. 

Paley,  Conv.   .    .    .  Paley  on  Convictions. 

Paley,  Ev.  of  Chr.  .  Paley's  Evidences  of  Christianity.    "Works,  5  vols.     18:;o. 

Palm Palmer's  Reports,  King's  Bench.     1vol. 

Park,  Ins Park  on  Marine  Insurance,  8th  edition,  London,  1842. 

Pari.  Deb Parliamentary  Debates. 

Partid Lopez'  Siete  Partidas  del  Rey  Alonzo  IX.,  Valladolid, 

1587.     4  tom  fol.  ' 

Pea.  Add.  Cas.    .    .  Peake's  Additional  Nisi  Prius  Cases.     1  vol. 

Pea.  Ev Peake  on  Evidence,  5th  edition,  London,  1822 

Pea.  R Peake's  Nisi  Prius  Rep.,  3rd  ed.,  1820,  but  paging  of  l.st 

ed.     1  vol. 

Pearce&D.     .    .    .  Pearce  &  Dcarsley's  Crown  Cases  Reserved.     1vol. 

Pears.  Chit.  PI.  .    .  Pearson's  Chitty.Jun.,  Prec.  in  Plead.,  2nd  ed.     1H47. 

Peck, Peck's  Reports,  Tennessee,  1822— 1824.     1vol.  (D.) 

Penning Pennington's  Rep.,  New  .Jersey,  1806—1813.  2  vols.  (C.) 

Pennsylv Reports  of  Pennsylvania,  1.S29— 1832.     3  vols.   (B.) 

Per.  &  K Perry  and  Knapp's  Election  Cases.     1  vol. 

Pet Peters'  Rep.,  Supreme  Courts  of  United  States,   1^27 — 

1843.   (A.) 

Pet.  C.  C.  R.  .    .    .  Peters'  Circuit  Courts  Reports,  United  States,  3rd  Circuit 

Court,  1803—1818.     1  vol.  (B.) 

Petersd.  Abr.  .    .    .  Petersdorff's  Abridgment.     6  vols. 

(2759) 


XXll 


ABBKEVIATIONS,    KTO. 


A8BREVIATION8, 


Ph.  Ev 

Phill 

Phillim.  li.      ... 

Pick 

Plowd 

Pullex 

Poph 

Porter,      

Poth.  CEuv.  Posth. 

Poth.  Obi 

Pr.  C 

Pr.  Min 

Prec.  in  Ch.     .    .    . 
Prest.  on  Abst.  .    . 

Price 

Pufir. 

Q.  15 

Quintil.  Inst.  Orat. 

R 

11.  &  R 

Rail.  Cas.     .... 

Rand 

Rawle, 

Ld.  Rav 

T.   Rav 

Reg.   Gen.  H.  T. 

or  E.  T.,  or  T 

T.,  orM.  T.     . 
Reid  on  Human 

Mind,   .... 

Rep 

Rep.  on  Ch.  Pr.  . 
Rep.  of  Cri.  Law 

Com 

Rep.  tern.  Finch 
Rep.    tern.    Hardw 

Res 

Rev.  Code,  . 
Rev.  St.    .    . 
Rid<;.  L.  &S. 
Ridjr.  P.  C. 
];ilev,    .    .    . 
liob.  A  dm.  . 
Rob.  on  Frauds 
]\ob.  on  Ciavel 
Rolterts.    .    .  , 
Rosi.  on  Elect. 
Roll.  Abr.    . 
Roll.  R.    .    . 
Roscoe,  Ev. 
Rose,     .    .    . 
Russ.     .    .    . 
Russ.  C.  &  M 
Russ.  on  Fact, 
Russ.  &  Myl 
Rv.  &  M.     . 
S.  C.      .    .    . 
S.  P.      ... 


NilME  OF  WORK,    ETC. 

Phillipps  on  Evidence,  9th  edition,  London,  1843. 

Phillijjs'  Reports,  Chancery.     2  vols. 

Pliilliniore's  Ecclesiastical  Reports.     3  vols. 

Pickerinj^^'s  Rep.,  Massachusetts,  1X23—1840.  24  vols.  (A.) 

Plowden's  Connnentaries  or  lieports.     2  vols. 

Pollexfen's  Reports,  King's  Bench.     1  vol. 

Popham's  Reports,  King's  Bench.     1  vol. 

Porter's  Reports,  Ala))ama,  1834—1839.     9  vols.  (D.) 

Pothier,  OCuvres  Posthumes. 

Pothier  on  Obligations,  l)y  Evans,  Philadelphia ed. ,  1826. 

Judicial  Committee  of  tlie  Privy  Council. 

Printed  Minutes  of  Evid.  on  Peer.  Claims  in  H.  of  Lords. 

Precedents  in  Chancery. 

Pre.ston's  Essay  on  Abstracts  of  Title. 

Price's  Reports,  E.xchequer.     13  vols. 

Puftendorff's  Law  of  Nations. 

Adolphus&Ellis'sRe]).,  New  Her.,  Queen's  Bench.  ISvoLs. 

Quintilianus  de  Institutijne  Oratoria. 

Rex  or  Regina. 

Russell  &  Ryan's  Crown  Cases  Reserved.     1  vol. 

Railwav  Cases.     All  the  Courts.     7  vols. 

Randolph's  Reports,  Virginia,  1821— 1828.     6  voLs.    (B.) 

Rawle's  Reports,  Pennsylvania,  1828 — 1835.  5  vols.  (A.) 

Ld.  Raymond's  Rep.,  King's  Bench  &  Com.  Pleas.  3  vols. 

Sir  Thomas  Raymond's  Rep. ,  Common  Law  Courts.  1  vol. 

Reguhe  Generales  of  Hilary,  Easter,  Ti'inity,  or  Michael- 
mas Term. 

Dr.    Reid's    collected   Works,    edited    by    Sir   William 

Hamilton,  Bart.,  Edinburgh,  1846. 
Lord  Coke's  Reports.     6  vols. 
Report  of  the  Commissioners  on  Chancery  Practice. 


>      Reports  of  Criminal  Law  Commissioners. 


Salk. 


Reports  in  the  time  of  Lord  Chancellor  Finch.     1  vol. 
Reports  in  tlie  time  of  Lord  Hardwicke.     1  vol. 
Respublica. 
Revised  Code. 

Revised  Statutes  of  different  States  in  America. 
Ridgway,  Lapp&Schoale's  Rep.,  King's  Bench,  Irel.  1  vol. 
Ridgway's  Parliamentarv  Cases,  Irisli  Parliament. 
Riley's  Law  Cases,  South'Carolina,  1836—1837.  1  vol.  (B.) 
Dr.  Roberts'  Admiralty  Reports.     3  vols. 
Roberts  on  Frai;ds. 

Robinson  on  Gavelkind,  3rd  ed.,  1821. 
Robertson's  Ecclesiastical  Rejiorts.     2  vols. 
Rogers  on  Elections.     6tli  ed.     London,  1841. 
Rolle's  Abridgment. 
Rolle's  Reports.  King's  Bench.     2  vols. 
Roscoe  on  Evidence  at  Nisi  Prius.   10th  ed.  London,  1861. 
Rose's  Reports,  Bankruptcy.     2 vols. 
Russell's  Re])orts,  Chancery,     o  vols. 
Russell  on  Ciiines  and  Alisdemeanors.  3rd  ed.  Lond.,  1843, 
Ivussell  on  Factors  and  Brokers.     I.,ondon,  1844. 
Russell  &  Mylne's  Re))orts,  Chancery.     2  vols. 
Ryan  and  Moody's  Nisi  I'rius  Reports.     1  vol. 
Same  Case. 
Same  Point. 

Salkeld's  Reports,  Common  Law  Courts.     3  vols. 
(2760) 


ABBREVIATIONS,  ETC.  XXlli 

ABBEKVTATIONS.  NAME  OF   WORK,    ETC. 

Say Saver's  Reports,  Kin<;'s  Bench.     1  vol. 

Sch.  &  Lef.      .    .    .  Schoales  &  Lefroy's  Keparts,  Chancery,  Ireland.     2  vols. 

Scott, Scott's  Reports,  Common  Pleas.     8  vols. 

Scott,  N.   R.    .    .    .  Scott's  New  Reports,  Common  Pleas.     8  vols. 

Selw.  N.   P.     .    .    .  Selwyn's  Law  of  Nisi  Prius.  ir)th  ed.    18.59 — 61,  London. 

Serg.  &  R Sergeant&Rawle'sRep.,Pennsylv.,1818— 29.  17vols.(A.) 

Sess.  Ca New  Sessions  Casses,  by  Carrow,  Hammerton,  &  Allen. 

4  vols. 

Shepl Shepley's  Reports,  Maine,  1836— 1841.     6  vols.  (C.) 

Shep.  Touch.  .    .    .  Sheppard's  Touchstone,  by  Preston. 

Shower, Shower's  Reports,  King's  Bench.     2  vols. 

Sid Siderfin's  Reports,  King's  Bench.     2  vols. 

Sim Simons'  Reports,  Vice-Chancellor's  Court.     17  vols. 

Sim.  N.  S Simons'  Reports,  New  Series,  Vice-Chanc.  Court.     2  vols. 

Sim.  &  St Simons  &  Stuart's  Reports,  Vice-Chanc.  Court.     2  vols. 

Skinn Skinner's  Reports,  King's  Bench.     1  vol. 

Sm.  &  Git.  ....  Smale  &  Giftard's  Reports.     V.-C.  Stuart's  Court.  3  vols. 

Smith,  Ch.  Pr.    .    .  Smith's  Chancery  Practice.     7th  ed.     London,  1862. 

Smith,  L.  C.    .    .    .  Smith's  Leading  Cases.     5th  ed.     London,  1862. 

South Southard's  Rcpn-ts,  New  Jersey,  1816— 182U.  2  vols.  (C.) 

St.   Ev Starkie  on  Evidence.     3rd  ed.     1842,  Loudon. 

Stair  Inst Stair's  Institutes  of  the  Law  of  Scotland. 

Stark.  R Starkie's  Nisi  Prius  Reports.    3  vol<. 

Steph.  pi Stephen's  on  Pleading.     5th  ed.     London.  1843. 

Story,  Agen.    .    .    .  Story  on  Agency.     London,  1839. 

Story,   Bail.     .    .    .  Story  on  Bailments. 

Story,  Bills,    .    .    .  Story  on  Bills  of  Exchange.     London,  1843. 

Story,  Confl.    .    .    .  Story's  Conflict  of  Laws.     2nd  ed.     London,  1841. 

Story,  Eq.  Jur.    .    .  Story's  Comment,  on  Equity  Jurispr.     4th  ed.,  1846. 

Story,  Eq.  PI.     .    .  Story  on  Eiiuity  Pleading,  3rd  ed.  London  &  Boston,  1844. 

Story,  Part.      .    .    .  Story  on  Partnership.     London  and  Boston,  1841. 

Story,  R Story's  Reports,  United  States,   1st  Circuit,  1839—1845. 

3  vols.  (A.).     Judge  Story's  Decision. 

Str Strange's  Reports  in  all  Courts.     2  vols. 

Stryk.    de    Sem.  \  Strvkius     de     Semiplena     Probatione.      Strykii    Opera 
Prob.    ....    J  "  Francof.  ad  Majuum.     1743—1753.     15  vols.  fol. 

Sty Styles's  Reports,  King's  Bench.     1  vol. 

Sug.  Pow Sugden  (Lord  St.  Leonards)  on  Powers.     8th  ed.     18.'}1. 

Sug.  V.  &  P.    .    .    .  Sugden  (Lord  St.   Leonards)  on  Vendors  &  Purch.    10th 

ed.,  1839. 

Sumn Sumner's  Reports,   1st  Circuit  Court  of  United  States. 

Judge  Story's  Decisions.     1830—1839.     3  voLs.    (A.) 

Swab.  Adm.  R.  .    .  Swabey's  Rep.  in  Court  of  Admiralty.     1858.     1  vol. 

Swab.  &  Trist.    .    .  Swabey  &  Tristram's  Rep.  in  Ct.  of  Probate  and  in  C't. 

for  Divorce  &  IMatrim.  Causes.     1858.     4  vols. 

Swanst Swanston's  Reports.  Chancery.     3  vols. 

Swift,  Dig Swift's  American  Digest. 

Swift,  Ev Swift's  American  Law  of  Evidence.     Hartford. 

T.  Jones Sir  Thomas  Jones'  Reports.     1  vol. 

T.  R Durnford  &  East's  Term  Reports,  King's  Bench.     8  vols. 

T.Ray Sir  Thomas  Raymond's  Rep.  The  Common  Law  Cts.l  voi. 

Tait,  Ev Tait  on  Evidence.     Edinburgh,  1834. 

Taunt Taunton's  Reports,  Common  Pleas.     8  vols. 

Tidd.     .  ' Tidd's  Practice.     !)th  ed.  London. 

Toller  on  Ex.  .    .    .  Toller  on  the  Law  of  Executors  and  Administrators. 

Tomlin,  L.  Diet  .    .  Tomlin's  Law  Dictionary. 

Turn.  &  R Turner  &  Russell's  Reports,  Chancery.     1  vol. 

Tyr Tyrwhitt's  Reports,  Exchecjuer.     5  vols. 

Tyr.  &  Gr Tyrwhitt  &  Granger's  Reports,  Exchequer.     1  vol. 

(2761) 


XXIV  ABBREVIATIONS,  ETC. 

ABBUEVIATIONS.  NAMK  OF  WORK,    ETC. 

U.  S United  States. 

V.-C Vice-CIumcellor. 

Y.John Vaughun  Jolin.son's  Ivoports,  in  V.-C.  "Wood's  Conrt.l  vol. 

Van  Ja'cuw,  Comm.  Van  Leeu\ven"s  Conuncntarics. 

Vaugh Vauglian's  Keports,  Common  I'lea.s.      1  vol. 

Ventr Ventri.s's  Keports,  Kinji's  Bcncli  and  Common  Pleas.l  vol. 

Verm Vermont's  liepoits.  Vermont,  182(j — 1^37.     9  vols.     (B.) 

Vern Vernon's  Keports,  Chancery.     2  vols. 

Ves Vesey,  Junior's  Keports,  Chancery.     22  vols. 

Ves.  &  B Ve.sc,y  &  Beanies'  Keports,  Chancery.     3  •vols. 

Ves.   Sen Vesey,  Senior's  Keports,  Chancery.     3  vols. 

Vin  Abr Viner's  Abridgment. 

Virg.  Cas Virginia  Cases,  Virginia,  1789— 1826.     2  vols.  (D.) 

W.  Bl Sir  William  Blaekstone's  Keports,  (K.  B.  &  C.  P. )2  vols. 

W.  Jon Sir  William  Jones'  Keports,  King's  Bench.     1  vol. 

W.N AVecklj' Notes,  edited  by  Council  of  Law  Reporting. 

W.  U Weekly  Reporter.     26  vols. 

W.  W.  &  H.    .    .    .  Wilmore,  Wollaston  &  Vodges'  Reports,  Queen's  Bench. 

Wash Washington's  Reports,  Virginia,  1790 — 1796.  2  vols.  (C.) 

Wash.  C.  C.  R.    .    .  Washington's  Circuit  Court  Reports,  United  States,  3rd 

Circuit  Court.  18U:5—18-i7.     4  vols.   (B.) 

AVatk.  Copyh.     .    .  Watkins  on  Copvholds. 

Watts,.    .".    .    .    .  Watts'  Reports,  "Pennsylvania,  1832— 1840.   10  vols.  (A.) 

W^atts&S Watts  &  Sergeant's  Rep.  Pennsylv., 1841-1842.  3  vols(A.) 

Webst.  Pat.  R.    .    .  W^ebster's  Reports  on  Patent  Cases.     1  vol. 

Wend Wendall's  Reports,  New  York,  1828— 1841.     (A.) 

WHiart Wharton's  Reports,  Pennsylvania,  183.")— 1840.  6  vols.  (A.) 

Whatelv's  Log.  .    .  Whatelev's  Logic.     3rd  ed.     London,  1829. 

Whately's  Rhet.     .  Wliatele'v's  Rhetoric.     3rd  ed.     Oxford,  1830. 

Wheat.' W'heaton's  Rep.,  Sup.  Ct.  of  Un.  States,  1816— 1827.(A.) 

Wheel.  C.  C.    .    .    .  W^heeler's  Criminal  Cases,  New  York.     3  vols.  (D. ) 

Wigr.   Disc.      .    .    .  V.-C.  W^igram  on  Law  of  Discovery,  2nd  ed.   Lond.,  1840. 

Wigr.  Wills,    .    .    .  V.-C.  Wigram  on  Interpret,  of  Wills,  4th  ed.  Lend.,  1858. 

Wightw Wightwick's  Reports,  Exchequer.     1  vol. 

Will,  on  Ex.    .    .    .  Williams  on  Executors  &  Administrators.     5th  ed.,  1856. 

Willes Willes'  Reports,  mostly  Common  Pleas.     1  vol. 

WilLs,  Cir.  Ev.   .    .  Wills  on  Circumstantial  Evidence,  London,  4th  ed., 1862. 

Wils Wilson's  Rep.,  King's  Bench  and  Common  Pleas.  3  vols. 

W'ils.  Ex Wilson's  Reports,  Exchequer  in  Equity.     1  vol. 

W^ing.  ^Lix  ....  Wingate's  Alaxims. 

Wms.  Saund.  .    .    .  Saunders' Rep., edited  by  Williams,  J.,  6th  ed.,  1845.  3  vols. 

^^  Enl'  ^"^^^'  ^^"    }  Wood's  Institutes  of  the  Laws  of  England.     Fol.  1772. 

Wood'b.  &  M.  .    .    .  Woodbury  &  ]\Iinot's  Reports,  United  States,  1st  Circuit, 

1845—1847.     2  vols.  (A.) 

Woodfall's    Junius,  3  vols.     London,  1^12. 

Woodf.  L.  &  T.  .    .  Woodfall's  Landlord  and  Tenant.  8th  ed.  London,  1863. 

Wright,  R.  .    .    .    .  Wright's  Reports,  Ohio,  1831—1834.     1  vol.  (D.) 

Y.  i*c  C.  Ch.  R.    .    .  Younge  &  Collyer's  Rep..  Vice-Chanc.  Court.     2  vols. 

Y.  &  C.  Ex.  R.    .    .  Younge  &  Collyer's  Reports,  Exchequer.     4  vols 

Y.   &  J Younge  &  Jervis's  Repi-rts,  Exchequer.     3  vols. 

Yeates, Yeates'  Reports,  Pennsylvania,  1791 — 1808.   4  vols.    (B.) 

Yelv Yelverton's  Reports.  King's  Bench.     1  vol. 

Yerg Verger's  Reports,  Ten nes.see,  1832— 1837.     10  vols.    (D.) 

You Younge's  Reports,  Exchequer  in  Equity.      1  vol. 


(2762) 


TABLE  OF  CASES  CITED. 


PAGE 

Aaron  v.  Aaron  911 

Abbey  v.  Lill  1210 

Abb:)t  v.  Herman  701 

Abbot  V.  Plumbe  15G6 
Abbott.  V.  Abbott  &  Godoy      1356,1367 

Abb:)tt  V.  Bates  990 

Abbott  V.  Hendricks  969,  981 

Abbott  V.  Massie  1030 

Abbott?;.  Middleton  9()2 

Abbotan  v.  Dunswell  62."') 

Abeel  v.  Radclitf  877 

Abel  V.  Potts  135.5 

Abi<;;nve  v.  Clifton  1174 

AbleyV.  Dale  1480 

Abouloff  )•.  Oppenheimer  1474 

Abraham  v.  Newton        -  464 

Abraham  v.  Morton  464 

Abrath  r.  North  East.  Ry.  Co.  141 

.Abrey  ;;.  Crux  980 
Accidental  &  Mar.  Ins.  Co.,  Re      1091 

Acebal  i'.   Levy  896,  899 

Acerro  v.  Petroni  1197 

Acheson  v.  Henry  473 

Ackary,  Re  1109 

Ackland  v.  Pearce  414 

Ackworth,  ex  parte  1471 

A'Court  V.  Cross  925 

Acraman  v.  Herniman  956 

Acraman  v.  Morrice  897 

Adam  r.  Kerr  1571,  1574 

Adams  v.  Angell  195 

Adams  v.  Balch  1424 

Adams  v.  Barnes  115,  1442 

Adams  r.  Barry  795 

Adams  c.  Dansey  884 

Adams  ?;.  Frye  1557 

Adams  v.  Gibney  1001 

Adams  v.  Jones  1034 
Adams  v.  Lloyd              483,  1247,  1537 

Adams  v.  Sanders  736 

Adams  v.  Wordley  964,  980 

A  damson,  Re  186 

Adamthwaite  t\  Synge  1318 

Addington  v.  Clode  1283 

Addington  v.  Magan  251 

Adelaide,  The  1420 

Admiral  Austen,  Re  912 

Admiral  Boxer,  The  227 

Afialo  V.  Fourdrinier  411 

Agnew  V.  Jobson  300 

AgraBk.  v.  Barry  958 


PAGE 

Agricultural  Cattle  Ins.  Co.  v.  Fitzger- 
ald 386,  1553 
Ahearn  v.  Bellman  699 
Ahearne.  v.  M'Guire  1128,  1133 
Ainsworth,  Re  903 
Airey  v.  Hill  216 
Airtii  Peer.  573 
Aitken,  ex  parte  786 
Alban  v.  Pritchett  675 
Albert  v.  Tlie  Grosvenor  Invest. Co.  973 
Alchin  ('.  Hopkins  889 
Alcock  V.  Cook  550,  1346 
Alcock  v.  The  Roy.  Exch.  Ins.  Co.  1201, 
1203,  1230 
Alcock  V.  Whatmore  20 
Alcorn  v.  Larkin  1323 
Alder  v.  Savill  1496 
Alderson  v  Clay  214,  378,  704 
Alderson  v.  Langdale  1549,  1557 
Alderson  v.  Maddison  720 
Aldous  V.  Cornwell  1551 
Aldridge  v.  Gt.  W.  Ry.  Co  947 
Aldridge  ri.  Haines  1425 
Aldridge  v.  Johnson  897 
Alexander  v.  Burchfield  44,  46 
Alexander  v.  Crosbie  971 
Alexander  v.  Dixon  1054 
Alexander  ?'.  Strong  404 
Ale.xander  v.  Vanderzee  61 
Alexandria,  Mechanics'  Bk.  of,  /'.  Bk. 
of  Columbia  533 
Alfonso  V.  U.  S.  360 
Alfurd  V.  Clay  (!22 
Alhusen  ?'.  Labouchere  472,  476 
Alivon  i:  Furnival  366  402,  405,  1325 
Allan's  Patent,  Re  160 
Allen,  Re  902 
Allen  v.  Bennet  876,  H80 
Allen  r.  Cameron  294 
Allen  V.  Denstone  534 
Allen  r.  Duncan  519 
Allen  )'.  Dundas            1352,  1431,  1465, 

1497 
Allen  V.  D.  of  Hamilton  1076 

Allen  V.  Maddock  910,  911,  1017 

Allen  V.  M'Keen  700 

Allen  r.  Pink  966 

Allen  i'.  Snvward  116 

Allen  r.  Yoxall  1058 

Alliance  Bank  of  Simla  v.  Carey        98 
Allnut,  Re  911 


(2763) 


XXVI 


TABLE  OF  CASES  CITED. 


910 


All  port  r.  Meek 

Alinosiiino,  Ke 

AliKT  r.  George 

Alvord  V.  ISaker 

Anialia,  The 

Ambrose  Jvook wood's  Case 

American  Fur  Co.  v.  U.  S. 

Aiuey  V.  Long 

Anilierst,  Ld.  v.  Ld.  Somers 

Amiss,  Re 

Amos  V.  Hughes 

Amos  c.  Smith 

Anderson  r.  Anderson 

Anderson  r.  Brit.  Bk.  of  Columbia 


PAGE 

1585 
1017 
736 
196 
234 
313 


Anderson  i 

.  Gill 

216,  347 

Anderson  ? 

.  Hamilton 

815 

Anderson  i 

.  Hay  man 

883 

Anderson  i 

.  Long 

333 

Anderson  i 

.  Pitcher 

1012 

Anderson  i 

.  Sanderson 

675 

Anderson  ? 

.  Scot 

897 

Anderson  i 

.  Thornton 

263,  724 

Anderson  i 

.  Weston 

186,  610 

Anderson  i 

.  Whalley 

1202 

Anderston 

?•.  Magawley 

1346 

Andrew  t\ 

Motley            366 

583,  1573 

Andrews  v. 

Askey   334,  335 

340, 1232, 
1235 

Andrews  t\ 

Elliot 

725 

Andrews  v. 

Hailes 

147 

Andrews  r. 

Martin       1130, 

1134,  1135 

Andrews  r. 

Palmer 

432 

Andrews  v. 

Solomon 

791 

Andrews  v. 

Turner 

919,  920 

Andrews  r. 

Vanduzer 

338 

Angell  !".  Duke 

889,  977 

Angell  r.  Worsley 

186 

Arbon  ?'.  Fussell 

Arcliangelo  v.  Thomson 

Archer,  Re 

Archer  r.  Baynes 

Archer  r.  Leonard 

Arden  v.  Sullivan 

Arding  i\  Flower 

Argoll,  Ly.  v.  Cheney 

Arklow,  The,  Re 

Arlett  /•.  Ellis 
341,  342  i  Armistead  r.  Wilde 
92;)  h  Armory  r.  Delaniirie 
911  •  Armour  v.  Walker 

Armstrong  v.  Hewitt 

Armstrong  r.  Norton 

Armstrong  v.  Stockham 

Arnit's  trusts.  Re 

Arnold  v.  Bp.  of  Bath  &  W 


1051 

1427 

909 


f93 


Anglesey  (M.  of)  v.  Ld.  Hatherton  307, 

308,  549 

Anglo-French  Cooperat.  Soc,  Re        49 

Angus  r.  Dalton  146 

August.  Smith  1235 

Ann,  The  234 

Annapolis,  The  226 

Anneslev  v.  Ld.  Anglesea  86, 137,  510, 

784,  801,  806,  1164,  1262,  1263 

Annett  v.  O-sbome  43 

Auun.   11,  138,  144,  210,  315,  727,  783, 

789,   799,   812,     826,     1065,    1132, 

1134,  1135,  1161,  1200,  1257,  1258, 

1262,  1427,  1447,  1497,  1588,    1589 

Anon.  r.  Anon.  817 

An.ste\    r.   North   &   South   Woolwich 


Subway  Co. 
Ansty  r.  Dowsing 
Antram  r.  Chace 
Apoth.  Co.  r.  Bently 
Appleton  V.  Ld.  Braybrook 
Aranquren  v.  Scholfield 


PAGE 

168 

197 

908 

873,  876 

921,  927 

855 

1127,  1130 

1556 

225 

147 

206,  207 

138,  149,  498 

463,  464,  465 

583,  1359 

1441 

1332 

128 

1358 

155 

54,  300 

155 


479 
366 
1343 
354 
69 
404 


Arnold  r.  Blaker 
Arnold  v.  Haniel 
Arnold  v.  Holbrook   • 
Arnold  r.  May,  of  Poole   838,  839,  843, 

845 
Arnott  V.  Redfern  1486,  1487 

Arnsby  v.  Woodward  699 

Aronegasy  v.  Lambonade  190 

Arundell  v.  Ld.  Falmouth  550. 

Arundell  v.  White  1336 

Ash,  Re  910 

A.shby?).  Bates  342 

Ashby  r.  James  930 

Ashcroftt;.  IMorrin  874,  880 

Ashcroft  V.  Redford  61 

Asher  r.  Whitelock  150 

Ashforth  v.  Redford  61 

Ashhurst  v.  IMill  970 

Ashlin  V.  Lee  937 

Ashmore,  Re  904 

Ashmore  r.  Hardy  691 

Ashpitel  V.  Bryan  731 

Ashpital  V.  Sercombe  63.  704 
Ashrufood   Dowlah  Ahmed    v.  Hyder 

Hos.sein  Khan  129 

Ashton  V.  Ld.  Langdale  891 

Ashton's  case  1049 

Ashwell  i>.  Lomi  172 

Ashworth  v.  Mnun  890 

Ashworth  v.  Outram  866 

Aslin  V.  Parkin  1441 

A.spden  v.  Seddon                  •  144 

Astbury  ?j.  Belbin  1133 

Aste  V.  Stumore  476 

Aston,  ex  jjarte  1247 

Astor  r.  Union  Ins.  Co.  988 

Atalauta,  The  130 

Atchinson  r.  Baker  196 
Atchley  v.  Sprigg               129,  571,  817 

Athenry  -Peer.  575 

Atherfold  v.  Beard  1287 


(2764) 


TABLE    OF    CASES    CITED. 


XXV 11 


PAGE 

Atherley  V.  Harvey  1243,  1524 

Athlone  Peer.  1356 

Atkins  r.  Cur  wood  211 

Atkins  V.  Hatton  582,  1359 

Atkins  V.  Humphrey  294 

Atkins  V.  Meredith  411 

Atkins  V.  Palmer  466 

Atkins  V.  Tredgold  661 

Atkins  I'.  Ld.  Willoughby  de  Broke  5H2 
Atkinson  v.  Baker  196 

Atkinson  v.  Fosbroke  484 

Atkinson  v.  Littlewood  1043 

Atlantic  Mut.  Ins.  Co.  v.  Huth        227 
Atter  V.  Atkinson  179 

Att.-Gen.  v.  Ashe  418 

Att.-Gen.  v.  Bond  1237 

Att.-Gen.  v.  Boston  1025 

Att.-Gen.  v.  Bovet  469 

Att.-Gen.  v.  Bowman  332 

Att.-Gen.  v.  Bradlaugh  1177 

Att.-Gen.  r.  Brazenose  Coll.  1024 

Att.-Gen.  v.  Briant  809.  810 

Att.-Gen.  v.  May,  of  Bristol  1024 

Att.-Gen.  v.  Bulpit  1194 

Att.-Gen.  v.  Bunce  98 

Att.-Gen.  v.  Calvert  175 

Att.-Gen.  r.  Cast  Plate  Glass  Co.     991 
Att.-Gen.  r.  Chambers  142 

Att.-Gen.  v.  Clapham  1025 

Att.-Gen.  v.  Clerc  263 

Att.-Gen.  t'.  Dakin  4 

Att.-Gen.  r.  Davison  424 

Att.-Gen.  v.  Donaldson  4 

Att.-Gen.  r.  Drummond         987,  1016, 
1018,  1022 
Att.-Gen.  v.  Emerson  1524,  1537 

Att.-Gen.  r.  Ewelme  Hospital  153 

Att.-Gen.  v.  Fadden  1086 

Att.-Gen.  v.  Gaskill  477,  481,  848 

Att.-Gen.  v.  Grote  1016 

Att.-Gen.  v.  Hawkes  285 

Att.-Gen   v.  Hitchcock        1230,  1231, 
1233,  1234,   1235 
Att.-Gen.  v.  Kohler  564 

Att.-Gen.  v.  Lambe  1.524 

Att.-Gen.  v.  Le  Marchant  406 

Att.-Gen.  v.  Corp.  of  London  1.524 

Att.-Gen.  v.  Metrop.Dist.  Ry.  Co.  1186 
Att.-Gen.  v.  Murdoch  '  1025 

Att.-Gen.  v.  Naylor  720 

Att.-Gen.  v.  Parker  1025 

Att.-Gen.  v.  Parnther  216 

Att.-Gen.  v.  Earl  of  Powis  1016 

Att.-Gen.  v.  Radloff     332,  1153,  11.54, 

1253 
Att.-Gen.  v.  Ray  490 

Att.-Gen.  v.  Riddle  136 

Att.-Gen.  v.  St.  Cross.  Hosp.  1025 

Att~Gen.  v.  Sidney  Sussex  Coll.    1024 


Att.-Gen.  v.  Sitwell 
Att.-Gen.  v.  Skinners' 
Att.-Gen.  v.  Stephens 


Co.  1132, 
123,  127. 
599,   600 


Att.-Gen.  v.  Sullivan 

Att.-Gen.  v.  Theakstone  25 

Att.-Gen.  v.  Thompson 

Att.-Gen.  v.  Tomline 

Att.-Gen.  v.  Whitwood  Local  Bd 

Att.-Gen.  r.  Wilson 

Att.-Gen.  of  Prince  of  Wales  v. 

man 
xVttree  v.  Ha  we 
Attridge,  Re 
Attwood  V.  Small 
Attwood  ('.  Taylor 
Attwood  V.  Welton 
Aubert  v.  AValsh 
Auckland,  Earl  ot 
Auckland,  Maid  of,  Re 
Audley,  Ld.,  case  of 
Augusta,  Bk.  of,   v.  Earle  22 

Augustien  v.  Challis 
Austee  v.  Nelms 
Austen,  Amiral,  Re 
Austin,  ex  parte 
Au.stin  V.  Bunyard 
Austin  r.  Chambers 
Austin  V.  Evans 
xlustin  V.  Guard,  of  Bethnal  Green  s'41 
Austin  V.  Mead  X'M 

Austin  V.  OLsen  101 

Austin  V.  Rumsey  430,   1574 

Australasia,  Bk.  of,  v.  Breillat  204 
Australasia,, Bk.  of,  ti.  Harding  1490 
Australasia,  Bk.  of,  v.  Nias  1489 

Australian  Roy.   Mail  St.  Nav.  Co.  r. 

Marzetti   '  841,  844 

Aveline  v.  Whisson 
Avery  v.  Pixley 
Aveson  v.  Ld.  Kinnaird  516,  51 


PAGE 

972 
1133 

59S, 
70H 

1194 
,   1418 

1524 

117 

.  1.539 

1051 
Cross- 
3()4 
891 
906 
653 

1339 

1231 
197 
226 

14.53 

1165 
230 
374 

1020 
912 

1105 
729 
543 

10.V2 


Awdley  i\  Awdley 

Aykroyd,  Re 

Aylesford,  Ld.,  v.  Morris 

Ayliffe  v.  Tracey 

Aynsley  r.  Glover 

Ayrey  v.  Davenport 

Ayrton  r.  Abbott  1425 

Avton  V.  Bolt 

B.',  falsely  called  B.  w.  B 

Babb  V.  Clemson 

Babbage  r.  Babbage 

Babington  v.  Mahony 

Backhouse  v.  Bonomi 

Backhouse  v.  Jones  305, 

Bacon  v.  Bacon 

Bacon  v.   Chesney  681, 

1  Baddeley  v.  Gilmore 
765) 


H.55 
917 
62H, 
782 
647 
1456 
174 
886 
97 
1335 
1467 
926 
213 
688 
1151 
1132 
145 
510 
796 
736 
463 


xxvin 


TABL?:  OF  CASES  CITED. 


PAGE 

PAOB 

Baddeloy  v.  INIortlock 

336 

Bamfield  v.  Tupper 

931 

Baj^ot  V.  Baj^at 

320 

,  4()S 

Bamtbrd,  ex  parte 

522 

Ballot  i\  Easton 

2:{7 

Banbnry  Peer.   129,  564,  571.  573,  574 

Bajijot,  Ld.,  ;'.  Williams 

1453, 

1455 

Banbury's  Tru.sts,  Re 

183 

Bajiuoley  v.  Hawley 

1003 

Bancrolt  ;;.  Bancroft  &  Rumney     1438 

liaiiulev  V.  Hawley 

100.5 

Banday  v.  Cartwright 

1001 

Bahia, "  Tlie 

1058 

15aiilield  r.  Pickard 

1540 

Bahia  &  Francisco  Ry.  Co. , 

Fte,  V. 

Trit- 

Bank  Prosecutions 

3(J7 

ten 

723 

l.ank  of  New  South  Wales 

V.  Owston 

Baigeiit  r.  Bailment 

1511 

84  i 

Baiclon  i:  Walton 

645 

,  9.52 

Banks  v.  Cros.sland 

887 

Bailey,  ex  parte               107 

167, 

1467 

Bauly,  Re 

906 

B.iiley,  Re 

910 

I5aniiatyne  v.  Bannatyne 

14:9 

Bailey  v.  Apple5^ard 

274 

Banner  v.  Jackson 

805 

Bailev  v.  Bellamy 

9">2 

Barbat  v.  Allen  1147,  1158, 

1163,  1184 

Bailey  v.  Bid  well 

346, 

1568 

Barber,  Re 

403 

Bailey  v.  Bodenham 

45 

Barber  v.  Holmes 

1358,  1510 

Bailey  v.  Edwards 

98> 

Barber  v.    Houston 

Errata 

Bailey  i\  Harris 

1432 

Barber  v.  Lamb 

1486 

Bailey  v.  Hyde 

337 

Barber  v.  Wood  10.37,  1052, 

1053,  1054 

Bailey  v.  Macaulay 

722 

,  814 

Barclay  v.  Bailey 

46 

Bailey  v.  Sweeting 

877 

Barclay  v.  Maskelyne 

915 

Baillie  v.  Jackson 

17 

Barclay  v.  Parrott 

943 

Baillie  r.  Kell 

294 

BardoU  v.  Pickwick 

507 

Baillie  v.  Ld.  Inchiquin 

925 

15arden  v.  Keverberg 

306 

Baillie's  case 

809 

Bargaddie  Coal  Co.  v.  Warl^ 

..   783,  973 

Bain  v.  Case 

1354 

Baring  v.  Clagett 

1478,  1482 

Bain  c.  Fothergill 

1000, 

1001 

Baring  v.  Clark 

533 

Bain  v.  Mason 

1510 

i5arker  v.  Buttress 

95 

Bain  r.  Whitehaven  &  Furness 

Tunc. 

Barker  v.  Davis 

836 

Rail.   Co.                    68, 

1515, 

1592 

Barker  v.   Dixie,   1162 

1162 

Bainbridge  v.  Wade 

1019 

Barker  v.  Ray 

589 

Bainbrigge  v.  Baddeley 

1447 

Barker  v.  Richardson 

654 

Bainbrigge  v.  Browne 

173 

Barker  v.  Stead 

1578 

Baines  r'.  Swainson 

147 

Barker's  Estate,  Re 

714 

Baird  v.  Cochran 

1252 

Barkworth  v.  Young 

878,  886 

Baker  v.  Baker 

1227, 

1230 

Barnard,  Re 

1334 

Baker  r.  Bradley 

172 

Barned's  Bking.  Co.,.  Re 

1393 

Baker.  Re.  Collins  v.  Rhodes 

98 

Barnes,  ex  parte 

1283 

Baker  r.  Cave 

1394 

Barnes  v.  Lucas 

1.571 

Baker  r.  Dening 

909 

Barnes  t'.  Mawson              542,  543,  549 

Baker  v.  Dewey 

118 

Barnes  v.  Pendrey 

952- 

Baker  v.  Keene 

214 

Barnes  v.  Toye 

Errata 

Baker  v.  Lane 

485 

Barnes  v.  Trompowsky 

1571 

Baker  v.  Lond.  &  S.  W.  Ry 

.  Co. 

793, 

Barnes  v.  Vincent 

1352,   1463 

1528 

Barnett  v.  Brandao 

5 

Baker  r.  Monk 

173 

Barnctt  v.  Cox 

94,  302 

Baker  c.  Ray 

138 

Barnett  v.  Glo.ssop 

29.) 

Baker  v.  Sampson 

211 

Barnett  ?-.  Lucas 

1450 

Baker  v.  Stephens 

725 

Barnett  r.  Tugwell 

221 

Bakewell's  Patent,  Re 

160 

Barnstable  v.  Lathey 

1285 

Balcetti  v.  Scran  i 

307 

Barough  v.  White 

653,   685 

Baldey  r.  Parker               395,  896 

,  897 

Barr  r.  Gratz                     582, 

586,   1424 

Baldnev  v.  Ritchie 

407 

Barraclough  v.  Greenhough 

1499 

Ballard  r.  W^av 

1417 

Barraclough  v.  Johnson 

548 

Balls  Si  Mot.   Bd.  Works,  Re 

944 

Barrel!,  Re 

107 

Balnie  r.  Hutton 

1202 

Barrel!  v.  Trussell 

854 

Baltazzi  v.  Ryder 

130 

Barrett  v.  Buxton 

96* 

Bamtield  v.  Massey 

339 

Barratti).  Hyndman 

881 

(2766) 


TABLE  OF  CASES  CITED. 


XXIX 


Barrett  v.  I^ong 
Barrett  v.  Kolfe 
Barrett  v.  Wilson 
Barron  v.  Daniel 
Barronet's  case 
Barro\s'  v.  Humphreys 
Barrs,  v.  Fewkos 


Barrs  v.  Jackson  1433,  1434,  1463 

Barry  r.  Barclay  464 

Barry  v.  Bebbington  368,  591 

Barry  v.  Butlin  179 


PAGE  I  PACK 

322    Bayley  v.  Ashton  i/31 

858    Bayley  v.  Bradley  '     119,  125 

1496    iWyley  v.  Buckland  1439 

1313    Bavley  M.  of  Conyngham  855 

103  '  Bayley  v.  Griffiths  482 

1079  '  Bayley  i\  Overseers  of  Nantwich      199 

1046  !  Bayley  r.  AVilkins  201 

Bayley  v.  Wvlie  1342,  1345 

Bayliiie  v.  Butterworth  200,  201 


Barrymore,  Ld.,  v.  Taylor 

650 

BarstOAv's  case 

747 

Barthelemy  v.  The  People, 

&c.        520 

Bartholomew  v.  Stephens 

405,  417 

Bartlett  r.  Delprat 

513,  688 

Bartlett  v.  Dowues 

157 

Bartlett  v.  Gillard 

648,  1044 

Bartlett  v.  Lewis 

4«5 

Bartlett  v.  Pentland 

201 

Bartlett  r.  Pickersgill 

870 

Bartlett  v.  Smith 

35,  36 

Bartlett  v.  Wells 

723 

Barton  v.  Dawes 

981,  1040 

Barton  v.  Dupuy 

1338 

Ba;ton  v.  Palmes 

427,  428 

Barton  v.  Robins 

178 

Barwell  v.  Adkins 

322 

Barwickr.  English  Joint  Stock  Bk.  778 

Barwis  v.  Keppel 

1210 

Basel  ey  v.  Forder 

211,  214 

Bass  r.  Cli-\e 

729 

Bastard  r.  Smith             642, 

1238,  1312 

Bastard  r.  Trutch 

165 

Basten  v.  Carew 

1425,  1427 

Bastiu  r.  Carew 

1192 

Batchelor  r.  Honeywood 

1582 

Bate  V.  Hill 

3:;;) 

Bate  r.  Kinsey                    138,  417,  7l>s 

Bateman  v.  Bailey      520,  5 

23,  524,  68^s 

Bateman  v.  Phillips 

874,  982 

Bateman  r.  Pinder 

924 

Bateman  r.  Ld.  Roden 

96i; 

Bates  V.  Don  Pablo  Sora 

22fi 

Bates  V.  Townley    692,  693 

1496,  1497 

Bateson  r.  Hartsink 

791 

Bath,  Ld.,  v.  Bathersea 

645 

Bathurst  v.  Errington 

962 

Batley  v.  Kynock 

1057 

Batten,  Re 

907 

Batthews  v.  Galindo 

721,  1161 

Butthyany  r.  Bouch 

850 

Batturs  r.  Sellers 

707 

Baugh  V.  Cradocke 

797 

Baumann  v.  James 

876 

Baxendale  v.  Bennett 

730 

Baxter  v.  Brown                  868,  890,  891 

Baxter  v.  Nnrse 

195,  19() 

Bayard  v.  Malcolm 

964 

Baylis  v.  Lawrence  58,  65,  66,  106 

Baynton's  case  497 

Bazeley  v.  Forder  211,  214 

Beadle,  Re  906 

Beadon  v.  King  796 

Beal  V.  Bird  1522 

Beal  V.  S.  Dev.  Ry.  Co.  938 

Beale  i'.  Sanders  855 

Beall  V.  Back  681 

Bealy  v.  Greenslade  931 

Beamish  v.  Beamish  1384 

Beamon  v.  Ellice  1194 

Bean  v.  Quimby  794 

Beardman  v.  Wilson  858 

Beardmore  v.  Wilson  858 

Beardslee  v.  Richardson  521 

Beasley  v.  Magrath  665 

Beasney's  Trusts,  Re  220 

Beatson  v.  Skene  815 

Beattie  v.  Ld.  Ebnry  1009 

Beauchamp  v.  Cash  1583 

Beauchamp  v.  Parry  685 

Beaufort,  D.  of,  v.  Ashburnham  1056 
Beaufort,  D.  of,  v.  Crawshay  36,  467,  468 
Beaufnt,  D.  of,  r.  Neald  720 

Beaufort,  D.  of,  v.  Smith  154,  541 ,  542, 
549,  551,  1346,  1417 
Beaufort,  D.  of,  v.  May.  of  Swansea 

154,  1025,  1026 
897 


Co. 


Beaumont  v.  Brengeri 

Beaumont  v.  Fell 

Beaumont  v.  Field 

Beaumont  v.  Mountain 

Beaumont  v.  Perkins 

Beaurain  v.  Sir  W.  Scott 

Beuvan  r.  M'Donnell 

Bechervaise  v.  Gt.  West.  Ry. 

Beck  and  Jackson,  Re 

15eckett  v.  Dutton 

Beckett  v.  Howe 

Beckett  v.  Corp.  of  Leeds 

Beckford  v.  Beckford 

Beckham  v.  Drake 

BcH'kham  v.  Osborne 

Beckton  v.  Barton 

Beckwith  v.  Benner 

Beckwitli  v.  Sydebotham 

Bect]uet  v.  MacCarthy 

Bedford,  K.  of,  r.  Ex'eter,  Bp.  of    1444 

Bedford,  D.  of,  v.  Lopes  394,  586 


1030 

1022 

1303 

1.584 

691 

321 

485 

1344 

248 

905 

143 

868 

866 

653 

1043 

806 

1212,  1213 

1478,  1489 


(2767) 


XXX 


TABLE  OF  CASES  CITED, 


PAGE 

Bodfordshire  case  (jtifj 

Ik-cch  c.  Jones  1201,  1204 

HfiH'luT  r.  ilivjor  870 

Heccliing  v.  Gower  1183 

F-eeinan  v.  Duck  730,  7:^1 

Beer  v.  AValker  1004 

Beer  v.  Ward  1589 

Bees  V.  Williams  862 

Bcestoii  r.  Collyer  195 

Belbin  r.  Skeats  360,  157:^ 

Belcher  v.  M'Intosh  341,  342 

Beldon  r.  Campbell  227 

Belfast  Dock  Act,  Re  311 

Bell  c.  Ansley  665 

Bell  r.  Bruen  978 

Bell  V.  Chaytor  1569 

Bell  V.  Fothergill  182 

Bell  V.  Frankis  696,  698 

Bell  V.  Howard  974 

1,'ell  ('.  Kennedy  227,  228 

Bell  V.  Love  140 

Bell  r.  Morrison  531 

Bell  V.  Parke  337,  338 

Bell  V.  Simpson  107 

Bell  V.  Stewart  1263 

Bell  V.  Warden  64 

Bell  V.  Wilson  64 

Bell's  case  752 

Bellerophon.  H.  M,  S.  815 

Bellinger  v.  The  People  1244 

Bellinger's  case  703 

Belt  V.  Lawes  1210 

Bempde  i'.  Johnstone  228 

Benbow  v.  Lowe  483 

Bend  v.  Georgia  Ins.  Co.  992 

Bender  v.  Zimmerman  480 

Benesh  r.  Booth  943 

Bengal,  The  1450 

Benham  i:  Newell  1043,  1045 

Becham's  Trusts,  Re  219 

Benmore,  The  343 

Bennet  v.  Bennet  868 

Bennet  v.  Hartford  1173 

Bennet  v.  Watson  1049 

Bennett  v.  Blain  891 

Bennett  v.  Brumfitt  910 

Bennett  r.  Crocker  377 

Bennett  v.  Gamgee  117 

Bennett  &  Glave,  Re  1040,  1104 

Bennett  v.  Griffiths  504 

Bennett  r.  Houldsworth  1043 

Bennett  v.  Hyde  3:57 

Bennett  o.  Marshall  1028 

Bennett  v.  Taylor  1571 
Bennett  v.  The  State  of  Tennesse       24 

Bennion  v.  Davison  712,  713 

Bennison  v.  Walker  237 

Benson  v.  Benson  916 

Benson  v.  Chapman  274 


PA  OK 

Benson  r.  Marshal  6H5 

Benson  v.  Olive  217,  429 

Benson  v.  I'ost  1287 

Bentall  v.  Burn  898 

Bentall  v.  Sidney  1312 

Bentham  v.  Wilson  IB^ 

Benley  v.  Cooke  1165 

Bentley,  Dr.,  caseof  1480 

Bentley  v.  Mackay  721,  971 

Benton  v.  Sutton  51 

Benyon  r.  Cresswell  850 

Beuyon  v.  Fitch  174 

Benyon  v.  Nettleford  116,  968 

Berdan  r.  Greenwood  464,  717 

Bere  v.  Ward  112 

Beresford  v.  Easthope  463 

Bergheim  v.  Gt.  East.  Ry.  Co.  205 
Berkeley,  Peer.  405,  507,  538,  555,  556, 
558,  559,  564,  566,  567,  571,  572,  589, 
1175,  1262 

Berkeley  v.  Hardy  845 
Berkeley  v.  Standard  Disct.  Co.        474, 

Bernion  v.  Woodbridge  644,  645 

Bernardi  r.  Motteux  1482 

Bernasconi  v.  Atkinson  1033,  1035 

Bernasconi  v.  Farebrother  668 
Berne,  City  of,  v.  Bk.  of  England         3 

Berney  v.  Bp.  of  Norwich  830,  1153 

Berney  r.  Read  1344 

Berry"j\  Lindley  855,  856 

rBerridge  v.  Ward  142 

Berry,  ex  parte  1064 

Berry  v.  Alderman  346 

Berry  v.  Banner  543,  1437 

Berry  v.  Pratt  1058 
Berryman  v.  Wise                188,  192,  695 

Berthon  v.  Loughman  1212 

Bertie  v.  Beaumont  112,  584 

Berwick  v.  Horsfall  64 

Berwick-upon-Tweed,  May.  &  Corp.  of, 

V.  IVIurray  1225 

Berwick,  May.  of,  v.  Oswald  972 

Berwick's  case  743 

Besantv.  Cross  980 

Besley  v.  ex  parte  722 

Bessela  v.  Stern  828,  1149 

Bessey  v.  Windham  646,  1465 

Betham  v.  Benson  "  533 

Bethell  v.  Blencowe  378,  381 

Betteley  v.  McLeod  1058,  1059 

Betteley  v.  Reid  727 

Betts  V.  Bagley  1425 

Betts  V.  De  Vitre  136 

Betts  V.  Menzies  62,  793 

Betty  V.  Nail  565 

Bevan  r.  Bevan  1470 

Bevan  ?'.  Gething  932 

Bevan  v.  Hill  404 

Bevan  v.  McMahon  1263 


(2768) 


TABLE  OF  CASES  CITED. 


XXXI 


Kevan  r.  Waters 
Bevan  v.  Williams 
Eeveridge  v.  Minter 
Beverley  v.  Beverley 
Beverly  ,  May.  of,  v.  Craven 


PAGE 

8U5 
191,  694 

782 

217 

i:ur, 


Beverley  i\  Lincoln  Gas  Light  &  Coke 

Co.  840,  844 

Beverley's  case  G'^2 

Bewicke  v.  Graham  1535,  1537 

Bewley  v.  Atkinson  97,  591 

Bewley  v.  Power  924,  926 

Beynon  v.  Cook  174 

Beynon  v.  Garrat  732 

Bhearv.  Harradine  1496 

Bibb  V.  Thomas  916,  917 

Biccard  v.  Shepherd  997.  998 

Bickett  V.  Morris  141 J  700 

Bickford  v.  D'Arcy  4s5 

Bidder  v.  Bridges  468,  1189,  Errnla 
Biddle  v.  Bond  727 

Biel,  Bai'on  de,  v.  Hammersley  885 
Biffin  V.  Bignell  212 

Bigg  V.  Strong  700 

Bigg  V.  Whisking  895 

Bigge  V.  Parkinson  1004,  1005 

Biggs  V.  Lawrence  968 

Biggs  r.  Sadlier  388 

Bignell  v.  Clarke  263 

Bigsby  V.  Dickinson  1595,  1596 

Bilbie  v.  Lumley  103 

Bill  V.  Bament  878,  897 

Billage  v.  Southee  173 

Billing  t;.  Welsh  110 

Billingshurst  v.  Vickers  1 78 

Bills  V.  Smith  107 

Bingham  v.  Stanley  346,  712 

Birch,  Re  160 

Birch  V.  Birch  181 

Birch  V.  Depeyster  1015 

Birch  V.  Edwards  943 

Birch  ?".  Ld.  Liverpool  887 

Birch  V.  Ridgway  1585 

Birch  .r.  Somervi'lle  1174,  1181,  1184 
Bird  ?'.  Adcock  167 

Bird  V.  Bonlter  948 

Bird  V.  Gammon  883,  926 

Bird  V.  Higginson  362,  835,  836 

Bird  V.  IVIalzy  484 

Bird  ('.  Randall  1444 

Birkenhead,   Lane.   &  Cheshire  June. 

Rail.  Co.  V.  Brownrigg  1515 

Birkenhead,   Lane.   &  Cheshire   June. 

Rail.  Co.  V.  Pilcher  128 

Birkmyr  v.  Darnell  881 

Birks  V.  Birks  ,        914 

Birmg.,  May.  of,  v.  Allen  145 

Birmg.,  Brist.  &  Thames  June.  Ry.  Co. 

V.  White  1284,  1289,  1522 

Birt.  Re  908 


PAGE 

Birt  r.  Barlow           191,  386, 

515, 

1510 

Birt  V.  Rothwell 

25 

Bishop  r.  Chambre 

1547 

Bishop  V.  Helps 

199 

Bisliop  i\  Howard 

194 

Bishop  V.  Countess  of  Jersey 

204 

Bittleston  v.  Cooper 

640 

Bittlestone  v.  Cooke 

107 

Black  V.  Lord  Braybrook 

69 

Black  V.  Holmes 

815 

Black  V.  Jobling 

182 

Blackburn  v.  Hargreave 

1053 

Blackburn  v.  Mackey 

214 

Blackburn  Guard,  r.  Brooks 

1187 

Blackett  v.  Lowes 

544 

Blackett  r.  Roy.  Ex.  xiss.  Co. 

99C 

,  991 

Blackball  v.  Gibson 

121 

Bhickham's  case 

1463 

Blackie  r.  Pidding 

404 

Blacquiere  v.  Hawkins 

8 

BlagraveiJ.  Blagrave 

427 

,  428 

Blague  v.  Gold 

1038 

Blair,  Re 

910 

Blair  v.  Ormond 

929 

Blake,  Re 

1033 

Blake  v.  Albion  Life  Ass.  Co. 

321 

Blake  v.  Beaumon 

265 

Blake  v.  Blake 

903 

,  904 

Blake  v.  Concannon 

128 

Blake  v.  Jennings 

1501 

Blake  v.  Johnson 

•  216 

Blake  t\  Knight 

904 

,  905 

Blake  v.  Pilford 

816 

Blakemore  v.  Glamorganshire  Can 

.  Co. 

1429,  1437. 

1443 

Bland  v.  Bland 

1438 

Bland  r.  Swaftbrd 

1079 

Blandy  v.  De  Burgh 

214 

Blankley  v.  Winstanley 

1025 

Blayuey's  Trusts,  Re 

1033 

Bleakley  v.  Smith 

874 

,  879 

Blenkin.sop  v.  Blenkinsop 

798 

Blewett  V.  Tregonning 

1261 

Blewitt,  In  re 

909 

Blewitt  V.  Roberts 

183 

Blighr.  Brent 

890 

Bligh  i\  Brewer 

951 

Bligh  V.  Wellesley 

401 

Blight  t\  Fisher 

1136 

Blight  V.  Goodliffe 

482 

Bloomer  v.  Spittle 

971 

Bloomfield  v.  Wharton 

141 

,  112 

Blossom  V.  Cannon 

1.52 

Blount  V.  Burrow 

645 

,647 

Blount  V.  Harris 

957 

Blower  v.  G.  AV.  Ry.  Co. 

998 

Blower  v.  Hollis                       1339, 

1340 

Bloxamr.  Elsie 

321 

382 

Bloxam  v.  Faire 

Errata 

(2769) 


xxxu 


TABLE  OF  OASES  CITED. 


PAGE 

Bluck  r.  (Jompertz  IS.IO 

Block  V.  I\;ickman  21,  355 

BliiiKlell  V.  Ciitterall  143 

Blundell  v.  Gladstone  9G0,  101 G,  1029, 

Blunt  V.  Lack 
Blvth  V.  Archbold 
Blyth  v.  Dennett 
Board  man  v.  Jackson 
Board  man  v.   Keed   & 


8 

187 

699 

704 

Ford's  Lessees 

1038 


Boast  V.  Firth 

Boddington  v.  Schlencker 

Boddv  c.  Boddy 

Boddy  V.  Wall 

Bodger  v.  Arch 

Bodmin  United  Mines  Co.,  Re 

Body,  Re 

Boelen  v.  Melladew 

Boehtlinck  v.  Schneider 

Bogert  V.  Cauman 

Bohun  V.  Delessert 

Jjjileau  V.  Rutliu 


1008 
45 
322 
2:59 
929 
9 
403 
465 
1215 
964 
163 
574,  670,  710,  7.36, 
1494 
480 
0:; 
721,  885,  970 
392,  989 
936 
289,  306 
Local  Board  ol' 


Bolckow  V.  Fisher 
Bolckow  V.  Seymour 
Bold  V.  Hutchinson 
Bold  V.  Rayner 
Balding  v.  Lane 
Boldron  v.  Widdows 
Bolingbrooke   Ld.,    v. 

Swindon  778 

Bolingbroke,  Ld.,  v.  Townsend        249 
Bolland,  ex  parte  1105,  llOi) 

Bolton  V.  Bolton  1341 

Bolton  V.  Bp.  of  Carlisle  861,  1554 

Bolton  c.  Gladstone  1481 

Bolton  V.  Corp.  of  Liverpool  786,  793, 
796,  801,  1285,  1524 
Bolton  V.  London  School  Board         153 
Bolton  v.  Sherman  C79 

Bolton,  Ld.,  V.  Tomlin  120 i 

Bond  V.  Douglas  324 

Bond  r.  Rosling  852 

Bonelli,  Re  1217 

Bonlield  v.  Smith  358,  1207 

Bonner,  Re,  Tucker  v.  Good  185 


Bootlc  r.  Blundell 
Borthwick  Peer. 
Bosancjuot,  Re 
Bosaiiquet  v.  Anderson 
Bosher,  In  re 
Boswcll  V.  Smith 
Bosworth  V.  Cotchett 
Botham  v.  Swingler 
Botha's  case 
B;)thnia,  The 
Bolting  r.  Martin 
Bottomley  r.  Forbes 
Boucher  v.  Lawson 
Boucher  v.  Murray 
Bouchier  v.  Taylor 
Bouillon  IK  Lupton 
Boulter  ?'.  Peplow 
B  )urdin  v.  Greenwood 
Bourne  v.  Coulter 
Bourne  v.  Fosbrooke 
Bourne  v.  Gatliffe 
Bours  V.  Tuckerman 
Bousfield  V.  Mould 
Bovill  V.  Pimm 
Bowden  v.  Allen 
Bowden  ik  Henderson 
Bowden  v.  Home 
Bowen  v.  Owen 


Bonnewell  r.  Jenkins 
Bonomi  i'.  Backhouse 
Bonzi  V.  Stewart 
Booker  v.  Allen 
Boorman  v.  Johnston 
Boosey  v.  Davidson 
Booth  V.  Briscoe 
Booth  V.  Clive 
Booth  V.  Grove 
Booth  V.  Kennard 
Booth  ?'.  Millns 
Booth  V.  Turle 


877 

145 

713 

1045 

962 

380 

236 

300 

265 

62 

359,  362 


PAGE 

1573 

573 

904 

730 

Errata 

197 

605,  GOO,  610 

1185 

1273 

224 

85S 

1012 

1483 

251 

1431,  1433 

997 

381,  382,  388 

923 

Errata 

837 

62,  1012 

1133 

1184 

Gl 

1246 

218 

1455 

59 

Bowerbank  v.  Monterro  977 

Bowers  I'.  Nixon  245,  250 

Bowes  V.  Foster  116,  646,  73(5 

Bowes  V.  Pontifex  899 

Bowes  V.  Shand  61 

Bowey  i:  Bell  56 

Bowker  v.  Burdekin  1561 

Bowlby  V.  Ball  892 

Bowles  V.  Jackson  911 

Bowles  r.  Johnson  1053,  1058 

Bowles  V.  Langworthy  156(5 

Bowman,  Re  127(5 

Bowman  v.  Bowman     1197,  1567,  1573. 
Bowman  *'.  Hodgson  366 

Bowman  v.  Horsey  989 

Bowman  v.  Manzelman  417 

Bowman  v.  Nichol  1549 

Bowman  v.  Norton  792,  798 

Bowman  ?'.  Rostron  114,  735 

Bowman  v.  Taylor  113,  119 

Bowring  v.  Shepherd  201 

Bowsher  v.  Calley  530 

Boyce,  In  re,  Crofton  v.  Crofton       4(54 
Boyce  v.  Douglas  1444 

Boyce  v.  Green  875,  891 

Boyce  v.  Rushboro  463 

Boyd  V.  Bolton  700,  705,  706 

Boyd  V.  M'Lean  869 

Boyd  V.  Moyle  247 

Boyd  V.  Petrie  1540 

Boyd  V.  The  State  759 


(2770) 


TABLF,  OF  CASES  CITKD. 


XXX  111 


Boytlell  r.  Drummond 
BoydcU's  case 
Bnyes  v.  Bedale 
Boyle  V.  MulhoUand 
Boyle  V.  Wiseman 
Boynton  r.  Kellogg 
Boys  V.  Ansell 
Boys  V.  Williams 
Boyser.  Colclongh 
Bracegirdle  v.  Heald 
Bracegirdle  v.  Hinks 
Bradford  v.  Romuey 
Bradford  r.  Young 
Bradlaugh  v.  Gossett 
Bradlaugh  v.  R. 
Bradley  o.  Arthur 
Bradley  v.  Beckett 
Bradley  v.  Bradley 
Bradley  v.  Holds  worth 
Bradley  v.  James 


PAGE 

877,  887 

67;j 

185 

1040 

36,  405,  1-254 

336,  1259 

247 
1016 
1477 

887 

293 

871 

1433 

Errata 

109 
1210 

114 
1447 

890 
598,  606 


Bradley  v.  Pilots  of  Newcastle         1025 

Bradshaw  v.  Bennett  1569 

Bradshaw  v.  Murphy  1253,  1288 

Bradshaw  v.  Vaughton  1387 
Bradstreet  v.  Nept.  Ins.  Co.  1475,  1480, 

1482 

Brady  v.  Cubitt  870 

Brady  v.  Curran  680 

Brady  v.  Oastler  966 

BradV  v.  Tod  533 

Brady  v.  Todd  634 

Brain  v.  Preece  614 

Braithwaite  ?;.  Gardiner  729 

Bramble,  ex  parte  420 

Bra  m  well  v.  Lucas  804 

Brandao  v.  Barnett  6 

Brand  ford  v.  Freeman  362 

Brandford  r.  Brandford  799 

Branton  r.  Griffits  1467 

Bramwell  ik  Penneck  1467 
Brashier  v.  Jackson            251,  252,  253 

Brasier's  case  1171 

Brassington  v.  Brassington  419 

Braun  v.  Mollett  462,  465 

Bray  v.  Hardwen  44 

Braye  Peer.  549 

Brazier  i\  Jones  1343 

Breadalbane  case  135,  190 

Breadalbane,  M.   of,  v.  M.  of  Chandos 

1454 

Breadalbane  Peer.  229 

Breckon  v.  Smith  692 

Breech  Loadg.  Arm.  Co.,  Re  1091 

Breeze  v.  Hawker  1365 

Brembridge  v.  Osborne  196 

Bremer  r.  Freeman  1216 

Breman's  case  9,  108 

Brenchley  v.  Still  905 

Brennan  r.  Dillane  1340 


PAGK 

Brennan  v.  Howard  250,  253 

Brennan  v.  Moran  1042 

Brest  V.  Lever  150 

Breton  v.  Cope  197,  1365,  1511,  1566 
Breton's  Estate,  In  re  837 

Brett  V.  Beales542,  549,  586,  1303,  1417 
Brettel  v.  Williams  20') 

Bretton  i\  Prettim?  672 

Brew  V.  Haren  1445,  1496 

Brewer  v.  Knapp  196 

Brewer  v.  Palmer  374 

Brewis,  Re  910 

Brewster,  Re  918 

Brewster  v.  Sewell  365,  397,  401,  421 
Brice  r.  Bannister  849 

Brickell  v.  Hulse  670,  687 

Bridge  v.  Eggle.ston  68H 

Bridge  r.  Gray  1454 

Bridge  v.  Sumner  1470 

Bridges  v.  N.  Lond.  Ry.     .  53 

Bridges  v.  Potts  48 

Bridget  Felthara,  Re  •    10.33 

Bridgewater,  Ld.,  ca.se  of  1518 

Bridgman  i\  Jenning  68:} 

Bridgwater  Trust  v.    Bootle-cum-Lin- 
acre  141,  142 

Bridson  ?'.  Smith  714 

Brien  r.  Swainson  877 

Briggs,  ex  parte  1282 

Briggs  r.  Aynsworth  362 

Briggs  V.  Briggs  1476 

Briggs  V.  Wilson  605,  610,  925 

Brigham  v.  Rogers  981 

Bright  V.  Hutton  722 

Bright  V.  Legerton  613 

Bright  V.  Walker  151,  155 

Brigstocke  v.  Smith  922,  926 

Brine  v.  Bazalgette  333 

Bringloe  v.  Goodson  1566,  1571 

Brinsmead  v.  Harrison  144:> 

Brisco  V.  Lomax        309,  542,  544,  551, 
552,  14.37 
Briscoe  v.  Stephens  1465 

Bristol,  city  of,  v.  Wait  'MM 

Bristol,  May.  of,  v.  Cox  1524,  1535 

Bristow  V.  Brown  982 

Bristow  V.  Cormican  142,  394,  585 

Bristow  r.  De  Secqueville  1217 

Bristow  ;'.  Miller  532,  930 

Bristow  V.  Sequeville  <)7,  1217 

Bristow  V.  Wright  261,  266 

Britain  ?•.  Ro.ssiter  887 

British  Empire  Ass.  Co.  v.  Browne   880 
British  Farmers  Pure  Lins.  Cake  Co., 
Re  1394 

British  Linen  Co.  v.  Drummond  69 
British  Prov.  Life  &  Fire  Ass.  Co. ,  Re  1 69 
Brittain  v.  Kinnaird  1425,  1436,  1467 
Britten,  ex  parte  1126 


C  LAW  OF  EVID. — V.  I. 


(2771) 


XXXIV 


TAUI.K  OF  CASKS  ciTElt. 


liroiul  r.  Iliim 
Broad  r.  Pitt 
Krocas  r.  lAoyd 
Hrock  c.  Kent 


785,  787,  7Si) 

lu.is,  lost) 

()(>H 
1 1  s.-) 


liruc'kbuiik  /•.  Aiulcrsdn 

Brodie  r.  Bn)(li<'  'y\9 
Brodie  v.  Hi)\vard                        227.  (iiJU 

Brojuan's  case  77(5 

Brtmia^e  r.  I'rosser  140 

Bromley  v.  Smith  174 

Bromley  r.  Wallaces  3An 

Bromwieh's  eas(^  440 

Brook  lit  Delcomyn,  Re  148 J 

Brook  r.  Hook  G.'} 

Brook  ?•   Jenney  167 

Brooke,  Re  919 

Brooke  r.  Brooke  18 

Brooke  v.  Haymes  119 

Brojke  r.  Kent  919 

Brooker  v.  Scott  60 

Brooks  V.  Blanshard  235 

Brooks  r.  Mitt-hell  685 

Broomtiekl  r.  Smith  293 

Brough  /■.  Parkins  21 

Brounker,  Ld.,  r.  Atkyns  151  h! 
Brown,  Re           Isl,  494,  906.  915,  921 

Brown,  ex  p.  704 
Brown  &  Croyd.  Can.  Co.,  Re         1496 

Brown  r.  Aekroyd  211 

Brown  r.  Armstrong  388 

Brown  v.  Batchelor  1019 
Brown  v.  Brown        181,  182,  462,  470, 
494,  915,  921 

Brown  v.  Brown  &  Paget  1150 

Brown  v.  Byrne  995 

Brown  v.  Dawson  1043 

Brown  v.  Edgington  1005 
Brown  i'.  Foster                          801,  805 

Brown  v.  Getchell  1134 

Brown  i.  Goodwin  339 

Brown  v.  Kempton  107 

Brown  ?.  Langley  977 

Brown  v.  Leeson  817 

Brown  v.  M'Dermott  1130 
Brown  i\  Payson                         805,  807 

Brown  v.  Pearson  714 

Brown  v.  Perkins  800 

Brown?!.  Philpot  345 

Brown  «;.  Pinkham  1551 

Brown  v.  Robins  145 

Brown  ?'.  Symons  194 
Brown  v.  Thames  &  Mersey  Mar.  Ins. 

Co.  1536 

Brown  v.  Thornton  69 

Brown  v.  Wood  152 
Brown  v.  Woodman                    393,  494 

Brown  v.  Wootton  1444 

Brown's  case  1165 

Browne  v.  Cumming  1274 


PAfJE? 

Browne  r.  (Jisborne 

10K5 

lirowne  r.  Murray 

360 

Brownell  r.  Bonney 

698 

Browning  r.  liudd 

178, 179 

Browning  r.  Paris 

924 

Browning  v.  Sabin 

1082 

Brownsword  v.  Edwards 

1242,  1244, 

1445,  1464 

Bruce  r.  Bruce 

228 

Bruce  v.  Nicolopulo 

163,  405 

Bruce  v.  Wait 

8 

Bruin  v.  Knott 

8 

Brune  v.  Thompson             2 

5,  (;00,  1025 

Brunsden  v.  Humphrey 

1449 

Brunswick,  D.  of,  v.  Harmer           1207 

Brutt  r.  Picard 

l.-)51 

Bryan  v.  Child 

956 

Bryan  r.  Wagstaft' 

412 

Bryan  v.  White 

909 

Bryan  v.  AVinwood 

147,  309 

Bryan  Reynolds,  Re 

920 

Bryant  v.  Foot 

22,  153 

Bryant  r.  Herbert 

55 

Bryant  v.  Lefever 

97,  156 

Bryce,  Re 

90.) 

Brydges  i\  Branfill 

467 

Brydges  v.  Fisher 

46.3 

Brydges  v.  Walford 

732 

Buccleueh,D.of,i-.  Met.  Bd. of  Works  80H 

Buchanan  v.  Rucker  1478,  1480 

Bucher  v.  Jarratt  379.  380,  415 

Buck  V.  Rob.son  849 

Buckuell  V.  Bleakhorn  901 

Bucket  V.  Church  63,  92-2 

Buckhouse  ;•.  Crossby  974 
Buckingham.  D.  of,  d.  Com.  of  Inl.  Rev  364 
Bucklaiid r. .Johnson  248, 1444, 1 44H.  1 450 

Buckler.  Knoop  200,  1010 

Buckler  v.  Millerd  9(i7 

Buckley  v.  Beardsley  872 

Buckley  v.  Cooke  1219 

Buckley  r.  U.  S.  1359 

Buckmaster  V.  Cox  1132 

Buckmaster  v.  Meiklejohn  710 

Buckmaster  v.  Russell  925 

Buckminster  v.  Perry  1209 

Buckton  ('.  Higgs  71(i 

Budding  i\  Murdock  241 

Bulkier  V.  Littlebury  1042 

I5ull  r.'  Loveland  791,  1252 

Bull  V.  O'Sullivan  729 

Bull  {'.  Parker  59 

Bullen  V.  Michel  583,  596 

BuUey  v.  Bulley  119 

Bullock  V.  Corrie  793,  796 

Bullock  r.  Corry  793,  796 

Bulmer  v.  Norris  890 

Bunbury  v.  Bunbury  791,  792 

Bunbury  ii  Matthews  188 


(2772) 


TABLE  OF  CASES  CITED. 


XXXV 


PAOE 

Bunn  V.  Bunn  1247 

Bunii  r.  Markham  h:{7 

Bunting's  case  14;{U 

Burbidge  r.  Robinson  1537 

Buichell  r.  Clark  394 

Burchfield  r.  Moore  1549 

Burder  r.  O'Xeill  830,  1153 

Burgess  r.  Burgess  074 

Burgess  r.  Clements  20G 

Burgess  v.  Lane  .  (563 

Burgess  r.  Langley  814 

Burgess  i\  Wickham  997 

Burgh  ('.  Legge  246 

Burghart  r.  Angerstein  678,  15(17 

Burghart  r.  Hall  (10 

Burgoyne  r.  Showier  905 

Burke  r.  Moore  905 

Burleigh  v.  Stibbs           •  393 

Burling  r.  Paterson  169 

Burlinson  v.  Hall  849 

Burls  r.  Burls  403 
Burmah  Trading  Corp.   Lim.  v.  Mirza 

Mahomed  Ally,  &c.  778 

Burmester  r.  Norris  204 

Burn  V.  Boulton  928,  932 

Burnby  i\  Bollett  1004 

Burnham  v.  Bennett  169 
Burnham  r.  Webster  1477  ,1480,  1482, 

1490 

Burnside  v.  Dayrell  722 


P>ussey  V.  Barnett 
Bustros  ('.  White 
Butclier  v.  Steuart 
Butcher's  case 


PAGC 

293 

4,  791,  152:5,  1530 

882 

1319 


Burr's  case 

812 

,  815,  1244 

Burr  V.  Harper 

1580,  1581 

Burr  V.  Hubbard 

Errata 

Burrell  v.  Nicholson 

362, 

1286,  1524 

Burrougli  r.  Martin 

1199,  1202 

Burrows  v.  Baker 

926 

Burstall  o.  Beyfus 

Errala 

Burt,  Re 

908 

Burt,  ex  p. 

1130,  1132 

Burt  i\  Burt 

191 

Burt  V.  Palmer 

668 

Burt  V.  Walker 

430, 

1572,  1574 

Burtenshaw  r.  Gilbert 

919 

Burton  &  Saddlers'  Co. 

,  Re 

1283 

Burton  r.  Ld.  Darnley 

806 

Burton  v.  (hiffiths 

52 

Burton  v.  Issitt 

531 

Burton  v.  Newbery 

911 

Burton  r.  Payne 

407 

Burton  r.  Plummer 

1201,  1202 

Burton  r.  Keevell 

851 

Bury  r.  Blogg 

20,  251 

Bury  r.  Oppenheim 

173 

Busii  V.  Fox 

62 

Bush  V.  Green 

300 

Bush  r.  Martin 

923 

Bushel  V.  Wheeler 

896,  899 

Bushell's  case 

35 

Bussard  r.  Levering 

197 

Butchers'  Co.  r.  Jones 
Butler  r.  Allnutt 
Butler  V.  Carver 
Butler  r.  Ford 
Butler  r.  Moore 
Butler  r.  ^Mountgarret 


(27 


1185 
200 
1185 
18'< 
789 
186,  197,  556, 
565,  573 
Butler  V.  Wright  613 

15utteniere  v.  Hayes  888 

Butts  r.  Swartwood  1177 

Buxton  V.  Cornish  375 

Buxton  r.  North  East  Ry.  Co.  999 

Buxton  /•.  Rust  877 

By  am  r.  Booth  1345 

Byue,  ex  p.  1127 

Byrd,  Re  905 

Byrd  v.  Nunn  296 

Byrne  v.  Boadle  207 

Byrne  v.  Frere  427,  428 

Byrne  r.  Harvey  411 

Byrom  v.  Thomp.son  1548,  1551 

Bywater  i\  Richardson  996 

Cahali.ero  r.  Slater  872 

Caddick  v.  Skidmore  877,  889 

Cadge,  Re  180 

Cadogan,  Re,  Cadogan  r.  Palagi  185 
Caldbeck  v.  Boon  807 

Calder  r.  Dobell  982 

Calder  r.  Halket  1425 

Caldwell  r.  Hunter  25 

Caldwell  v.  I'agham  Harb.  Rec.  Comm. 

243 
Caldwell  r.  Parker  1550 

Caledonian  Ry.  Co.  r.  Sprot  145 

Call  r.  Dunning  1566 

Callaghan  v.  Pepper  S45 

Callan,  Re  "  403 

Callans  r.  Sherry  1132 

Calley  r.  Richards  794,  796,  80.! 

Callow  r.  Howie  664 

Calmady  r.  Rowe  142,  154 

Calvert  v.  Bovill  1479,  1482 

Calvert  r.  Flower  123S,  1,545 

Calvert  v.  Scinde  Ry.  Co.  105>< 

Calye's  case  20(5 

Calypso,  The  '  1452 

Cambrian  Mining  Co.,  Re  1092 

Cameron's  Coalbrook  Ry.  Co.,  Re  419, 

420 
Cameron  v.  Lightfoot    735,  1134,  113"), 

l];;6 

Camfiekl  v.  Bird  323 

Cammell  r.  Sewell  1428,  1430,  1481 
Camoys,  Ld.,  7-.  Blundoll  1032,  1033 
Canioys  Peer.  574,576,578 

73) 


XXXVl 


TA15LK  OF  (;ASKS  dTKI). 


1-Jll. 


Campbell,  ex  p. 

Campbell,  i'.  Att.-Gen. 

Campbell  c.  Campbell 

Campbell  v.  Christie 

Campbell  v.  Dalhousie,  K.  ol 

Campbell  r.  Hodj^soii 

Campbell  i:  ^IoCona<;lu 

Campbell  r.  Riekaids 

Campbell  r.  Tweml((,\ 

Campbell  r.  Webster 

Campion's  case 

Camula,  West  of,  Oil  i\ 

Canal  Bk.  r.  Bk.  ol'  AUxmy 

Cann  v.  Clippeiton 

Cannam  v.  Farmer 

Cannan  r.  Hartley 

Cannell  r.  Curtis 

Canning's,  Eliz.,  ease 

Capital  Fire  Ins.  As.soc 

Capron  c.  Capron 

Carbonell  r.  Bessell 

Cardinall  v.  Cardinall 

Card  well  v.  ^lartin 

Carew  r.  White 

Carev  r.  Atkins 

Carey  r.  Pitt  1581, 

Cargill  v.  Bower 

Cariss  v.  Tattersall 

Carlisle,  May.  of 

Carlisle  v.  Eady 

Carlisle  r.  W^haley 

Carlos  V.  Brook 

Carmalt  v.  Post 

Carmarthen,  Mav.  of. 


P.VGK 

son 

IIK) 

1(M:5 

1548 
489 
980 

1-212 

IKil 
f]!)8 
7()1 
lie  4(;0.  ll!);> 
7:^1 
300 
359 
8(J3 
189 

1142 

42iJ 

177 

463 

Errata 

1549,  1558 

1526 


Re 


675 
1582 

241 
1547 


Carter  v.  Ld.  Coleraine 
Carter  v.  Downish 
(Airter  r.  .lames 
Carter  r.  .Jones 
Carter  v.  Mnreot 
Carter  c  Prykc 
Carter  /•.  Tousaint 
Carter  /-.  White 
Carter  &  Crost's  ease 
Cartwright  v.  (jreen     , 
Carver.  Re 
Carver  v.  .Jackson 
Carry  v.  Gerrish 
Case  r.  Reeve 
Casement  r.  Fulton 
Cashill  /■.  Wright 
Cashin  c.  Craddock 
Casmore.  Re 
Cassidy  v.  Firman 
,  Steuart 
Churchley 
O'Brien 


Tilamire      393. 735 

1185 

959 

12.57 

1207 

Lewis  246.843 


Carnarvon.  Ld.,  v.  Yillebois       543.552 
Carne  v.  Nicholl  600,  601 

Carne  i\  Steer  703 

Carpenter  v.  Buller  114,  119,  120 

Carpenter  r.  Provid.Wash.  Ins.  Co.  971 
Carpenter  r.  Wall  335.  1241,  1258 

Carpenters'  Co.  v.  Hay  ward 


PAQE 

647 

5 

711,  713,  1464 

357 

141 

.306 

896,  897 

1.561 

1484 

1164,  1242 

906 

113,  682 

197 

1440 

436,  900,  902 

207 


Cassidy  i 
Casson  v. 
Ca&son  V. 
Cast  r.  Poyser 
Castellii'.  Groom 
Castle  r.  Downton 
Castle  V.  Fox 
Castle  r.  Sworder 
I  Castlebar  Guard,  v.  Ld 
'  Castleden  r.Castleden 
I  Cast ri que  v.  Imre 
:  Cates  r.  Hardacre 
Cates  r.  Winter 
Catherwood  v.  Caslon 
Catherina  Maria.  The 
Catlin  r.  Skoulding 
Catling  v.  King 
Caton  v.  Caton 
Caton  V.  Lenox 
Catt  V.  Howard 
Cattell  V.  Ireson 
Catton  r.  Simpson 


1530 

907 

925 

4 

950 

126.3 

107!) 

465 

957 

1019 

8!)7 

Lucan         1511 

160 

1430,  1478 

1244 

406,  408 

191 

1 359 

929 

875 

234,  674,878,  885,  886 

492 

649,  663,  120;; 

11.53 


Carpmael  r.  Powis 
Carr  v.  Burdiss 
Carr  v.  Griffith 
Carr  v.  Jackson 
Carr  r.  Lond.  &  N.  W 
Carr  v.  Montefiore 
Carr  v.  Mostyn 
Carrier  Dove,  The 
Carrigy  v.  Brock 
Carrington  v.  Cornock 
Can-ington  v.  Jones 
Carrington  v.  Roots 
Carroll  r.  Co  we  11 
Carruthers  v.  Graham 
Carskadden  v.  Poorman 
Car.stairs  v.  Stewart 
Carter  v.  Boehm 
Carter  c.  Carter 


783,  785,  792  I  Cattrall,  Re 

1569,  1570    Caunce  r.  Spanton 
177  :  Caunt  v.  Thompson 
983    Cavan  v.  Stewart 
Ry.  Co.         732    Cave  v.  Hastings 
962    Cave  v.  Mackenzie 
542,  683,  1506  '  Cave  v.  Mills 

226  :  Cave  r.  Mountain 
948  I  Cawley  r.  Furnell 
428    Cawthorne  c.  Cordrey 
605    Cazenove  v.  Vaughan 
893  :  Central  Xews  Co.  v.  East  Tel 
873    Chabbock's  case 
429,  468    Chad  v.  Tiksed 

572  ,  Chadwick  v.  Chadwick  1243,  1254 

216  ;  Chadwick  v.  City  of  Dub.  St.  Pack.  Co.    8 

1211.  1212    Chadwick  r.  Turner  950 

121    Chalmers  v.  Shackell  134 

(2774) 


1.549 
I'-O 
195 
246 

1480 

876,  877 

947 

724 

1427 
925 
887 
424 
461 
748 

1025 


.50 


Co 


TA15LK  OF  CASES  CITED. 


XXXVil 


PAGE 

Chamberlain  r.  King  o(M» 

Clianibors  v.  Bernasconi  601,  (517,  ()18 

CHiamhers  i'.  Kelly  101.') 

Chambers  v.  Mason  CJ80 

Chambers  v.  Wood  178 

Chalmley  v.  Ld.  Dunsany  1454 

Chamney,  Re  809 

Champian  v.  Atkinson  305 

ChamjHon  v.  Plnmmer  874 

Chain  i>ion  v.  Terrv  408 

Chainimeys  v.  Peck  200,  614 

Chandlier  r.  Grieves  4,  "28 

Chandler  r.  Home  1193,  1194 

Chandler  r.  Howell  891 
Chandos  Peer.            573,  574,  .576,  578, 

57!) 
Chandos  M.,  v.  Corns,  of  Inl.  Rev.    364 

Chant  V.  Brown  783,  792,  79S 

Chanter  r.  Hopkins  1 005 

Chapel  r.  Hicks  294 

Chaplin  r.  Levy  416.  642 

Chaplin  r.  Rogers  898 

Chapman  v.  Beard  697 

Chapman  v.  Callis  850 

Chapman  i\  Chapman  560 

Chai)man  v.  Cowlan  541 

Chapman  v.  Davis  1055,  1080 

Cliapman  v.  Emden  362 

Chapman  r.  Keane  45 
Chapman  v.  Monm.  Ry.  &Can.  Co.  1429 

Chapman  ii  Rawson  359 

Chajiman  v.  Searle  727 

Chapman  v.  Speller  1003 

C^hapman  v.  Sutton  247 

C'hapman  r.  Walton  1212 

Chappell  V.  Purday  1340 

Chappie  r.  Cooper  61 

Charkieh,  The  28 

Charles  v.  Blackwell  92 

Charlotta,  The  103 

Charlter  v.  Barret  322 

Charlton  v.  Coombes  784,  798,  801 

Charlton  v.  Hindmarsh  909 

Charlton  v.  Watson  324 

Charnley  r.  Grnnl)y  404 

Charnock  v.  Deviiinjs  1193 

Charter  v.  Charter  "  1026,  1033 
Chart.  Mer.  Bk.  of  India  v.  Dickson      52 

Chase?';  Lincoln  1209 

Chasemore  v.  Richards  156 

Chasemore  r.  Turner  927 

Chatelain  i\  Pontigny  1463 

Chater  r.  Beckett       "  884 

Chatfield  v.  Fryer  547 

Chatland  v.  Thornley  25 

Chaurand  v.  Angerstein  988 
Cheese  v.  Lovejoy             916,  918.  1593 

Cheesebrougb,  Re  107 

Cheesraan  v.  Exall  728 


r.AGK 

Cheltenham  &  Gt.   West.    I'niun  Kail. 
Co.  r.  Daniel  72:5 

Cheney  r.  Courtis  IC,.),  ll!)() 

Chennell,  In  re,  Jones  r.  Channell  1595 
Cherry  v.  Cherry  356 

Cherry  v.  Colonial  Bk.   of  Australasia 

1009 
Cherry  r.  Heming  170,  855,  870.  886 
Cheslyn  v.  Dalby  924 

Chester  r.  Wortley  479,  4-'0,  485,1243 
Chesterfield  Colliery  Co.  v.  Black     479, 

480 
Chesterton  r.  Farlar  l(j7 

Chetvvynd  i\  Lindon  1242 

Chichester  r.  M.  of  Donegal  419,  790 
Chichester,  Ld.  Jn.,  v.  Coventrv  1043 
Child  V.  Grace  70.%  706 

Child  i\  Htenning  236 

Childerston  v.  Barrett  1127 

China   St.  Ship   Co.   i\  Coih.    Ap.   Co. 

1519 

Chin  nock  i'.  Ly.  Ely  877 

Chipp  V.  Harris  954,  955 

Chirac  r.  Reinicker  806 

Chisman  r.  Count  702 

Chitty  V.  Dendy  27 

j  Chodwick  v.  Palmer  902 

1  Cholmondeley,  Ld.,  v.  Ld.  Clinton  79H 

I  Christian.  Re  909 

j  Christian  v.  Coombe  736 

I  Christie  v.  Richardson  1387 

I  Christie  v.  Unwin  167,  1467 

j  Christmas  ?'.  Whinyates  180 

j  Chubb  ('.  Solomons  814 

;  Church  v.  Hubbart  67 

j  Church  V.  Imp.  Gas  Light  and  Coke  Co. 

j  838,  839,  840,  841,  843 

I  Churchward  v.  Palmer  8 

t  Churton  v.  Frewen  792,  1056 

Chute  V.  Busteed  8.55 

Ciocci  V.  Ciocci  1451 

City  of  Berne  r.  Bk.  of  England  3 

City  of  Bristol  r.  Wait  398 

City  of  Cambridge.  Re  227 

City  of  London  r.  Gierke  542 

City  of  London  r.  Perkins  427 

City  of  London  Gas  Light  and  Coke  Co. 

r.  Nicholls  840 

City  of  Mecca  1430 

Clagett  V.  Phillips  795 

Clan  Gordon,  The  22() 

Clanmorris,  Ld.,  v.  Mullen  1572 

Clapham  r.  Cologan  1.551 

Clapham  v.  Langton  997 

Clarbroughr.  Toothill  1109 

Clarges  v.  Sherwin  i  123 

Claridge?;.  Hoare  1243,  1244 

Claridge  r.  Mackenzie  126 

Clarl:,  Re  910 


(2775) 


XXXVUl 

Clark  c. 

Adic 

Clark  i: 

Alexander 

Clark  V. 

Hi  inflow 

Clark  r. 

Clark 

Clark  r. 

(iifford 

Clark  r. 

Hooner 

Clark  r. 

Iloii^liam 

Clark  V. 

I.each 

Clark  r. 

Molyneux 

Clark  r 

Mullick 

Clark  r 

Vorce 

Clark  (• 

Waite 

Clark  I' 

Wilmot 

Clark  7- 

Wright 

TAIU,!-;  OF  CASES  CITEO. 


PACK 

727 

214,  5;w, »:?() 

1207 
785 
9()}) 
92:5 
289 
215 
139 
68 
1204 
688 
592 
59 
Clark's  Ex.  v.  Van  Reimsdvk  664,  824 
Clarke,  Re  167,  909^  1427,  1467 

Clarke,  ex  parte  1127,  11:50,  1132 

Clarke  r.  Bradlaugh  108,  1176 

Clarke  v.  Callow  297 

Clarke  v.  Clarke  723,  909 

Clarke  r.  Courtney  582 

Clarke  v.  Cuckfield  Union        839,  840, 

844 
Clarke  v.  Dickson  967 

Clarke  r.  E.  India  Co.  450 

Clarke  v.  Fuller  877 

Clarke  c.  Koehe  370 

Clarke  v.  Koystoue  1010 

Clarke  v.  Saffrev  1197 

Clarke  r.  Bcripps  916,  917 

Clarkson  v.  Clarkson  913 

Clarkson  v.  Woodhouse  394,  586 

Clary  v.  Clary  1.208 

Clav's  case  .  189 

Clay  V.  Crowe  403,  404 

Clay  v.  Stephenson  465,  466 

Clay  V.  Thackrah  641 

Clay  V.  Yates  895 

Clayton  v.  Blakey  855 

Clayton  v.  Gregson  988 

Clayton  v.  Ld.  Nugent  965,  1016,  1030, 

1031 
Cleare  v.  Clears  178 

Cleave  v.  Jones  :57,  794,  931 

Clegg  V.  Levy  1215 

Clemenshaw  v.  Corp.  of  Dublin        845 
Clement's  case 
Clement,  ex  parte 
Clement!  v.  Golding 
Clendon  v.  Dinneford 
Clergy  Society,  Re 


Clifton  r.  U.  S. 
CI  in  an  v.  Cooke 
CI i lie's  case 
Clive  ('.  Clu'ew 


I'AGE 

139,  365,  ()9() 

885,  895,  972 

177 

664 


Clerk  r.  Molineux 
CI  eve  r.  Powel 
Cleveland,    Duch. 

rick 
Clifford  V.  Burton 
Clifford  V.  Hunter 
Clifford  V.  Parker 
Clifft.rd  r.  Tarrell 


Dow. 


1091 
1195 

21.  27  I 
195  ! 
984  1 
1133 
797,  1449  ; 
t)f,    V.  Mey- 
64  j 
536,  676  I 
59,  1221  I 
1546,  1548 
969) 
(27 


Clogstown  r.  Walcott  182 

Cloncurry,  Ld.,  case  of  673 

Close,  ex  parte  1040,  1104 

Closmadeuc  r.  Carrell  168 

Clothier  v.  Cliapman  544 

Clowes  V.  Higginson  972 

Clowes  n.  Milliard  236,  250 

Clunnes  v.  Pezzey  138 

Clutterlmck  v.  Jones  463 

Clyde  Nav.  Co.  r.  Barclay  227 

Coal  Consuming  Gas  Co.,  Re  1596 

Coates  i\  Bainbridge  534 

Coates  r.  Birch"  805 

Coates  r.  Chaplin  873,  899 
Cobbett,  ex  parte          1085,  1130,  1131 

Cobbett  V.  Grey  64:5 

Cobbett?;.  Hudson  1183,1194 

Cobbett  V.  Kilminster  1585,  15^6 

Cobbold  V.  Caston  895 

Cobdeu  V.  Kendrick  802,  806 

Cochran  v.  Retberg  988 

Cock  V.  Gent  :502 

Cockavne,  Re  916,  919 

Cocking  V.  Ward  889 

Cockrill  r.  Sparkes  658 

Cocks  r.  Nasli  790 

Cocks  V.  Purday  1216 

Codd  v.  Donnelly  464 

Coe  r.  Clay  1001 

Coggs  V.  Bernard           .  205,  2l)6 

Cohen  v.  David.son  999 

Cohen  v.  Hinkley  223 

Cohen  v.  Templar  791 

Cohn  V.  Davidson  999 

Coit  V.  Tracy  531 

Col  hern's  case  1162 

Colbourn  v.  Dawson  1019 

Colclough  i:  Smyth  103:5 

Cole  r.  Hawkins  11:56 

Cole  V.  Headly  670 

Cole  r.  Planning  828 

Cole  V.  Sherard  11 

Coleman's  case  739 

Coleman  i\  Gibson  899 

Coleman  v.  Southwick  513 

Coles  V.  Bk.  of  England  724 

Coles  i\  Bri.stowe  201 

Coles  V.  Coles  &  Brown  1218 

CoUard  v.  Sampson  901 

Colledge  v.  Horn  679,  927 

Collen  V.  Wright  1009 

Collett  V.  Collett  1209,1212 

Collett  V.  Hubbard  727 

Collett  V.  Ld.  Keith  692,  1475 

CoUette  V.  Goode  296 
:6) 


TABLE  OF  CASES  CITED. 


XXXIX 


PAGE 

(jollier,  ex  p.  107,  1407 

Collier  v.  Nokes  20,  1242 

Collier  v.  Simpson  1214 

Colling  r.  Treweek     :193,  413.  414,  415 

Collins  V.  Barrow  1002 

Collins  V.  Bayntun  loGO 

Collins  V.  Bishop  190,  515 

Collins  r.  Blantern  116,  967,  968 

Collins  V.  Carnegie  19;>,  695 

Collins  V.  Gashon  1546 

Collins  V.  Godefroy  1059 

Collins  V.  Jackson  203 

Collins  V.  Martin  168 

Collins  «.  Maule  388,1366 

Collins  V.  Prosser  1550 

Collins  r.  Rhodes,  re  Baker  98 

Collins  r.  Welch  56,  57 

Collinson  i\  ISIargesson  925 

Collis  V.  Emett  1561 

CoUis  V.  Stack  928 

Collyer  v.  Willock  931 

Colman  v.  Anderson  152 

Colt  (•.  Netervill  892 

Coltman  v.  tJregory  1035 

Coltman  v.  Marsh  926 
Columbia,  Bk.  ol',  r.  Patterson         838 

Colvin  V.  Proc.  Gen.  222 

Com.  V.  Bullard  967 

Com.  V.  Carey  1581,  1590 

Com.  V.  Daua  794 

Com.  V.  Drake  754,  789 

Com.  V.  Eberle  525 

Com.  V.  Feely  1136 

Com.  V.  Green  1184 

Com.  V.  Hill  1170 

Com.  V.  Knapp  738,  755,  777 

Com.  V.  Kneeland  21 

Com.  t\  Norcross  386 

Com.  V.  Richards  491 

Com.  V.  Shepherd  817 

Com.  r.  Smith  812 

Com.  V.  Tilden  812 

Com.  r.  Vass  631 

Com.  ('.  Woelper  1514 
Combe  r.  Corp.  of  London      795,  1524, 

1537 

Combe  r.  Pitt  734 

Comm.  of  Leith   Har.  &  D.  v.  Inspec. 

of  Poor  1470 

Commercial  Bk.  of  Hcotl.  r.  Rhind  7:56 

Commings  r.  Heard  1496 

Commins  r.  Scott  875 

Compagnie     Financiere  v.    Peruvian 

Guano  Co.  1538 

Compton  V.  Chandle.ss  1403,  1502 

Concordia,  The  8 

Conflans  Quarry  Co.  v.  Parker  404 

Con  Ion  V.  Moore  1442 

Connelly  v.  Connelly  1476 

(2' 


PAGE 

Connor  v. i  080 

Cimnor  r.  Cronin  168 

Conradi  r.  Conradi  491,  1431 

Conron  v.  Conron  183 
Conserv.  of  Riv.  Thames  v.  Hall       226 

Constable  v.  Constable  177 

Contant  r.  Chapman  732 

Contract  Corp.,  Re  1091 

Conway  ?;.  Beazley  1476 

Conybeare  v.  Parries  409 

Cooch  V.  Goodman  854,  855 

Coode  V.  Coode  1356 

Cook,  Re  1086 

Cook  V.  Hearn  417 

Cook  V.  Lambert  907 

Cook  V.  Leonard  300 

Cook  V.  Moylan  295 

Cook  V.  Nethercote  1194 

Cook  V.  Stearns  890 

Cook  V.  Tomlinson  1187 

Cooke  V.  Banks  547,  1512 

Cooke  t).  Butler  1511 

Cooke  V.  Green  142 

Cooke  V.  Lamotte  172 

Cooke  V.  Lloyd  561 

Cooke  V.  Loxley  123 
Cooke  V.  Maxwell             814,  816,  1335 

Cooke  V.  Sholl  1430,  1473 

Cooke  '('.  Stratford  247 

Cooke  ('.  Tanswell  1568 

Cooke  r.  Wilby  Errata 

Cooke  V.  Wildes  38,  139 

Cookes  V.  Cookes  622 

Cookes  V.  Mascall  721 
Coole  V.  Braham  667,  682,  686 
Coombs  V.  Bristol  &  Exeter  Ry.  Co.  899 
Coombs  V.  Coether 
Coombs,  Re 
Coope  V.  Cresswell 
Cooper  V.  Blandy 
Cooper  V.  Bockett 
Cooper  V.  Gibbons 
Cooper  r.  Grant 
Cooper  ('.  Harding 
Cooper  r.  Lloyd 
Cooper  V.  Macdonald 
Cooper  r.  Mansden 
Cooper  i\  Meyer 
Cooper  V.  RoJoinson 
Cooper  r.  Shepherd 
Cooper  V.  Slade 
Cooper  V.  Smith 

Cooper  V.  Taylor  712 
Cooper  V.  Wands.  Board  of  Works    1 480 

Cooper  II.  Wool  tit  184 
Cooper,  in  re.  Cooper  r.  Cooper  170 
Coorg,  Rajah  of,  r.  East  India  Co.    815 

Coote  V.  Boyd  1045,  1046 

Coote  (-'.  Leighworth  725 


180,  90;- 


1358 
907 
607 
127 
919 
138 
951 

1104 
818 
1043,  1341 
616 
730 
979 

1444 

133,  135,  778 

876 


xl 


TAHLF,  OF  CASKS  CITKD. 


I'Aci: 
Cope,  Ke  iJlO,   l.)U 

a)pe  r.  Cope      12!»,  1:50,  817,  .^IH,  loOS 
Cope  V.  Mooney  1499,  1500 

Cope  V.  Rowlands  1!)2 

Cope  V.  Thames  Haven  Dock  &  Kail. 
Co.  842,  124-2 

Copeland  v.  Watts  791 

Copen  V.  Adamson  1480 

Ct)pland  r.  Tuulniin  651! 

Copley  r.  liuitoii  348 

Copp  r.  Upham  1252 

Copper  Miners'  Co.  r.  Fox         710,  841 
Corbett  r.  Corbett  432 

Corbishley's  Trusts,  Ke  219 

Corder,  Ke  90(i 

Cordery  r.  Colville  247,  698 

Cordery  t:  Colvin  246,  698 

Cord  went  v.  Hunt  972 

Cork,  Bp.  oi;  r.  Porter  481,  1243 

Cork  &  Baiulon  Ky.  Co.  v.  Cazenove  128 
Cork  &  Bandon  Ky.  Co.  v.  Goode  98 

Cornelius  Kyan,  Ke  904 

Cornell  v.  Green  492 

Cornlbot  v.  Fowke  262 

Corntbrth  i:  Sniithard  927 

Cornish  v.  Abington  719 

Ci)rnish  i\  Clark  171 

Cornish  v.  Hockin  238 

Cornwall  v.  Kichardson     290,  332,  337, 

338 
Corsellis,  Re 
Corsen  v.  Dubois 
Cort  r.  Ambergate,  &c.,  Ry.  Co. 
Cortis  r.  Kent  Waterworks  Co. 
Cory  V.  Bretton 
Cory  r.  Davis 
Cosmopolitan,   Re 
Cosnahan  ?-.  Grice 
Cossens,  ex  p. 
Cossens  v.  Cossens 
Cossey  v.  Lond.  t^  liright.  Ky.  Co 


Costa  Rica  Kep-  of,  r. 

Costa  Rica,  Rep.  of,  r 
Coster  V-  Hetheringto 
Coster  c.  Innes 
Cotching  11.  Basset 
Cotes  r.  Davis 
Cotesworth  v.  Spokes 
Cottam  r'.  Partridge 
Cotterill  v.  Hobl)y 
Cottington,  ex  parte 
Cottle,  ex  parte 
Cotton,  Re 
Cottrell  V.  Huglies 
Cottrill  V.  Myrick 
Couch  r.  Meeker 
Couling  v.  Coxe 


C.uiion  r.  .Moon; 
(,'ounhaye,  Ke 
Courteen  r.  Touse 
Cousins  r.  Paddon 
Coutts  r.  Ac  worth 
Couturier  v.  Hastie 
Cow  r.  Kinnersley 
Cowan  V.  Abrahams 


PA  OK 

•••142 

1329 

1198 

291 

172 

882 

463 

379,  415 


Cowan  V.  Braidwood    1474,  1475,  1478, 

1487 

Cowell  V.  Chambers  1417 

Cowie  V.  Halsall  1549 

Cowie  V.  Kemfry  389,  390 

Cowling  V.  Ely  655 

Cowjier  r.  Ld.  Cowper-  137 

Cox  V.  Allingham  392,  1352 

Cox  r.  Cannon  951 

Cox  V.  Hickman  203 

Cox  r.  Knight  126 

Cox  ?•.  Middleton  877 

Cox  )'.  Midi.  Ry.  Co.  840 

Cox  V.  Newman  1342 

Cox  r.  Reid  54,  300 

Cox  r.  Walter  342 

Cox  (-..Willoughby  215 

Coxliead  v.  MuUis  932 

Coxhead  v.  Richards  54,  58,  140 

Cox's  Trusts,  Re  177 

Craig  i:  Fenn  342 

Crane  c  London  Dock  Co.  8 

1531    Crane  v.  Marshall  600 

791    Crane  v.  Powell  876 

973    Crank  v.  Frith  ].5()7 

193    Craven,  ex  parte  107 

688    Craven,  Re,  ex  p.  Tempest  107 

371    Craven  v.  Halliley  521 

225    Ci'awcour  v.  Salter  7,  807 

837    Crawford  v.  Crawford  922,  926 

1254    Crawford  &  Lindsay  Peer.  170,  .")72 

118  1318,  1588 

92,    Cray  v.  Halls  644 

1527    Creagh  v.  Blood  8(>2 

Erlanjier        419,    Crease  v.  Barrett       538,  540,  542,  547, 

474,  15:!6  548,  551,  560,  589,  601,  602,  (W.i 

Stronsbersi  1530    Credit  Co..  Lim.,  in  re,  The  1521 

1387    Credland  v.  Potter  959 

223    Creen  r.  Wright  57 

700    Crevy  ?;.  Carr  324,  1222 

676    Crepps  v.  Durden  14(;7 

698  I  Crerar  v.  Sodo  363 

929  j  Cresvvell  v.  Jack.son  1585 

376  j  Crew  v.  Saunders  1282,   1287 

1483    Cripps  v.  Davis  923,  924 

722  j  Cripps  r.  Hartnoll  884 

906    Cripps  r.  Hills  60 

157,  158    Cripps  v.  Wells  359 

1210  !  Crisdee  v.  Bolton  62 

978  I  Crisp  r.  Anderson  138,  168 

1083,  1084  I  Crispin  v.  Di.glioni  405,  561 

(2778) 


TABLI-;  OF  CASES  CITED. 


xli 


C'lol.  r.  Croft 
Croft  V.  Graham 
Croft  r.  Luuiley 
Croftou  c.  Poole 
Crofts  r.  Marshall 
Croker  v.  M.  of  Hertford 
Croker  v.  Walsh 
Cromack  v.   Heathcote 
Croinpton  r.  Butler 
Cronk  r.  Frith 
Crook  r.  Dowling 
Crook  V.  Hill 
Crookeudeu  r.  Fuller 
Crookewit  r.  Fletcher 
Crooiiies  r.  iSIurrisou 
Croshie  (•.  Thompson 
Crosby  r.  Hetherington 
Crosby  v.  I'ercy 
Crosby  r.  Wadsworth 
Cross  r.  Kaye 
Crosse  v.  Bedingfield 
Crossley,  ex  p. 
Crossley  v.  Dixon 
Crossley  ?'.  Elworthy 
Crossley  v.  Lightowler 
Crossley  c.  Maycock 
Ch-ott}'  V.  Hodges 


PAGE 

yo() 

174 
698 
695 
990 
912,  919 
149 

78:; 

829 

1567 

1312 

185 

228,  229 

1554 

473 

653 

7,  8,  1445 

430.  514,  1572 

893 

694 

656 

1105 

727 

171 

141 

877 

1549 


Crouch  V.  Cred.  Fon.  of  England      849 


Crouch  V.  Hooper 
Croudson  r.  Leonard 
Croughton  r-  Blake 
Crowder  c.  Hopkins 
Crowe  r.  Clay 
Crowley  v.  Page 
Crowley  v.  Vitty 
Crowninshield's  case 
Crowuiushield  r.  Crowninshield 


570,  .571 

1482 

1359,  1437,  1506 

586,  688 

404 

1235 

859 


Crowther  v.  Appleby 

Crowther  v.  Solomons 

Croxton  v.  May 

Cruise  c.  Clancy 

Cubitt  r.  Porter 

Cuff  ('.  Penn 

Cumberland  v.  Copeland 

Cuming  v.  French 

Cummin  r.  Smith 

Cumming  r.  Roebuck 

Cummings  r.  Heard 

Cundell  v.  Pratt 

Cunliffe  r.  Sefton  430,  1572,  1574,  157 

Cunningluim,  Re  913 

Cunningham  v.  Cunningham  190 

Curlewis  v.  Corfield  696,  698 

Curling  v.  Perring  795 

Curren  v.  Crawford  617 

Currie  r).  Anderson  896,899 

(urrie  r.  Brown  1564 

Currie  v.  Child  1571 


216 
347 

1052 
168 
129 
400,  158;] 
144 
975 
949 
690 
695 
389 

1496 
1250,  1251 


Curry  r.  Walter 
Curtin  v.  Evans 
Curtis  r.  Plunt 
Curtis  r.  Mackenzie 
Curtis  i:  M'Sweeney 
Curtis  r.  Pugh 
Curtis  r.  Rickards 
Curzon  r.  Lomax 
Cusack  r.  Robinson 
Cutbush   ?'.   Gilbert 
Cuthbert  /•.  Cumming 
Cutler  i\  Newlin 
Cutler  V.  Pope 
Cutto  V.  Gilbert 
Cutts  V.  Pickering 
Cutts  V.  U.  S. 
Cutts  ;'.  Ward 
D.  falsely  called  F.  r.  F. 
Dabbs  v.  Humphries 
Da  Costa  r.  Edmunds 
Da  Costa  v.  .Jones 
Da  Costa  r.  Pym 
Da  Costa  r.  Villa  Real 
Dagleish  v.  Dodd 
Daines  r.  Hartley 
Daines  v.  Heath 
Daintry  r.  Brocklehurst 
Daioz,  The 
Dal  by  v.  Hirst 
Dale  V.  Hamilton 
Dale  V.  Humfrey 
Dalgleish  r.  Hodgson 
Dalison  v.  Stark 
Dallow,  Re 

Dalrvmple  i:  Dalrymple 
Dalrymple  v.  Hall' 
Dalrymple  v.  Leslie 
Dalston  v.  Coatsworth 
Dal  ton  V.  Angus 
Daly  V.  Att.  Gen. 
Daly  r.  AVilson 
Dalzell  r.  ]\Iair 
Damerell  v.  Protheroe 
Dan  V.  Brown 
Dance  v.  Robson 
Dancer  v.  Ciabb 
Dandridge  v.  Corden 
Dane  v.  Kirkwall 
Danlbrd  r.  McAnulty 
D'Angibau,  in  re 
Daniel  v.  Bond 
Daniel  v.  Luker 
Daniel  v.  North 
Daniel  v.  Pitt 
Daniel  ?;.  Thompson 
Daniel  ?\  Wilkin 
Dan i ell  ?\  Daniell 
Daniels  v.  Conrad 
Daniels  v.  Harris 


542, 


548, 
.S96, 


PAOE 

s(»y 

1043 

73S 

1043 

1569 

897 

149 

A'.) 

897 

'  3(i8 

995 

681 

893 

181,  915 

802 

1556 

939 

-     213 

928 

990 

817 

1580 

1430 

650 

1207 

1562 

148 

227 

1011 

895 

995 

1481,  1482 

379 

910 

9,  1214,  1215 

185 

480,  481 

137 

146 

177 

589,  603 

724 

543,  550 

661,  916 

27,  1351 

913 

1243 

1429 

292 

12m 

1528 

1484 

603 

668 

1086 

541,  .551 

1039 

1236 

997 


(2779) 


Xlll 


TABLE  OF  C.\.Si:S  CITKI). 


Daniels  v.  Potter 
Diinsey  ?'.  Kichardson 

Danyel  v.  

Darby  v.  Ouseley 
Darcys,  Re 
Darlev  v.  Martin 


PAGE  I 

5;>U,  (J.n 
200  I 
1484 

322,  :]81,  (J49 

8181 
9G1 


Davis  r. 
Davis  ?'. 
Davis  V. 
Davis  V 


PAGE 

Vass  l;i44 

Waddinfrtou  1025 

Williams  392,  1352,  1353,  13G6 


Darlington  i^  Bank  Co.,  ex  p.  204  j 

Darrell  r.  Evans  389,  948 

Dartmouth,  Ly.,  v.  Roberts     683,  1312 
Darvill  r.  Roper  04 

Dashwood  v.  Jcrmyn  886 

Davenport  r.  The  Queen  098 

Davey  r.  Shannon  888 

David  V.  Preece  251 

Davidson  v.  Cooper        169,  1548,  1549, 
1550,  1554,  1555,  1558 
Davidson  v.  Kimpton  129 

Davidson  v.  Wood  212 

Davies,  Re  904 

Davies  v.  Brown  1288 

Davies  r.  Campbell  600 

Davies  r.  Davies  173,  1238,  1311 

Davies  v.  Dodd  404 

Davies  r.  Edwards  928 

Davies  r.  Fitton  971,  972 

Davies  r.  Humphreys  595 

Davies  V.  Lowndes     186,  555,556,560, 
561,  563,  574,  576,  577,  1424,  15X8 
Davies  v.  D.  of  Marlborough  174 


Davies  v.  Marshall 
Davies  ;•.  Morgan 
Davies  r.  Nicholas 
Davies  v.  Otty 
Davies  v.  Pierce 
Davies  v.  Ridge 
Davies,  ex  p..  re  Sadler 
Davies  v.  Staiubauk 
Davies  r.  Waters 
Davies  v.  White 
Davies  v.  Williams 
Davis  V.  Black 
Davis  r.  Capper 
Davis  V.  Curling 
Davis  r.  Dale 
Davis  r.  Davis 
Davis  V.  Dodd 
Davis  V.  Hedges 
Davis  V.  Jones 
Davis  V.  Lloyd 
Davis  r.  Lovell 
Dinis  V.  Lowndes 
Davis  r.  jNIason 
Davis  V.  Rainsford 
Davis  V.  Reid 
Davis  V.  Scrace 
Davis  r.  Scrase 
Davis  V.  Spurling 
Davis  V.  Treharne 
Di'.vis  r.  Trevanion 


700 

542,  557,  564.  599 

195 

1250 

600,  602,  683 

661 

727 

981 

790,  802,  803 

1381 

1532 

109 

50,  51 

300 

1221 

680 

403 

1452 

967 

590,  615,  135 


Wood 

Davis's  Trusts,  Re 

Davison  r.  (Jont 

Davison  ?'.  Stanley 

Davlin  v.  Hill 

Davy  (".  Garrett 

Da\ves  ii  Peck 

Daws  V.  Shed 

Dawkins  v.  Antrobus 

Dawkins  v.  Paulet 

Dawkins  v.  Rokeby  Ld 

Dawson  v.  Chamney 

Dawson  /'.  Dawson 

I^wsoii  V.  Gregory 

Dawson  v.  Jay 

Dawson  v.  Macdonald 

Dawson  r.  Remnant 

Day  v.  Bather 

Day  V.  King 

Day  i\  Spread 

Day  V.  Trig 

Day  V.  Williams 

Dealce  v.  Hancock 

Deacon's  case 

Deady  v.  Harrison 

Dcane  r.  Packwood 

Dear  r.  Knight 

Debenham  v.  Mellon 

De  Bode,  Baron,  case  of 

De  Caen,  The  General 

De  Cosse  Brissac  r.  Rathboue 

Deeble  v.  Lineham 

Defreeze  r.  Trumper 

Defries  v.  Davis 

De  Gaminde  v.  Pignu 


862. 


509 
11 

8(53 

■  860 

978 

237 

89!) 

681 

1480 

57 

57,  815,  1126 

206 

1043 

133(i 

1483 

298 

736 

20(j 

367,  1468 

14:50,  1473 

1037 

155 

547,  557 

313 

688 

1183 

1218 

211 

601,  1215 

227 

1489 

1.55,  156 

1003 

324 

724 


De  Grave  v.  May.  of  Monmouth  839,844 


Delamere,  Ld.,  v.  The  Queen  ,109 

Delamotte  v.  Lane  306 

Delaney  v.  Fox  124 

Delarue  v.  Church  153 

De  la  Rue  v.  Dickenson  58 

De  la  Saussave,  Re  916 

Delegal  v.  Highley  322 

Delesline  v.  Greenland  671 

Delhasse  ex  p.,  re  Megevand  203 

De  Li.sle,  Peer.             ^  1504 

1054,  1083,  1084  |  Delmege  v.  Mullins  126 

464  I  Delogny  r.  Rentoul  689 

1209  I  De  Medina  v.  Norman  1001 

1038    De  Medina  v.  Owen  650 

1248    Dempsev  v.  Lawson  914 

348    Den  v.  Clark  1429 

348  i  Den  v.  Fulford  1313 

648    Dench  v.  Dench  1  -i : ,  968 

144  I  Dendy  v.  Nicholl  698 

954  I  Dendy  v.  Simp.son  309 

(2780) 


TABLE  OF  (' 

PACE 

Di'iiisoii  ('.  Diteher 

lOiJ 

DciHi  V.  Spray 

541 

Demi  ('.  White 

f575 

IJeim  r.  Wilford 

1020 

Dennett  v.  Crocker 

877 

Dent  ('.  Bennett 

172 

[)e  Pontes  i:  Kendall 

918 

De  Praslin,  Due,  case  of 

762 

Derbj',  case  of  Ld. 

217 

Derljy  Bk.  r.  Lumsden 

484 

Derinzy  v.  Turner 

90(i 

Derisley  r.  Custance 

866 

De  Koo  V.  Foster 

728 

(\\SKS  CITKI). 


Dinisdale  v.  Dimsdale 
Diniuore,  Ee 
Dinn  r.  Blake 
DinomoyiDebi  cKovT^ucliini^ 


De  Koos  Peer.    392,  572,  573,  574,  579, 

1508 
De  Kosaz  Francois,  In  re  goods  of  1030 
De  Kutzen,  Baron,  i'.  Farr  598 

Desborough  t-.  Kawlins     784,  801,  803, 

804 
Desbrow  v.  Wetherley  1549 

Desbrowe  i\Wetlierby  1549 

Despau  v.  Swindler  26 

De  Thoren  v.  Att.-Gen.  190 

Devala  Prov.  Gold  Min.  Co.,  Re      533 
De  Vaux  r.  Steinkeller  934 

Devereux  v.  Much  Dew  Church        386 
De  Visme,  In  re  868 

Devon  Peer.  573 

Devon  Witches  741 

Devonshire,  Duke  of,  v.  Neill    61,  388, 
541,  549,  551,  553,  558,  576,  1025, 
1804 
Devoy  /•.  Devoy  869 

Dewdney  r.  Palmer  1188 

De  Whe'lpdale  i:  Milburn  683,  785 

Dews  V.  Kyle  1323 

Dexter  v.  Hayes  188,  189 

Devbel's  case  23 

Diana,  The  227,  228 

Dicas  r.  Lawson  1080 

Dickenson  v.  Teasdale  007 

Dickins,  Re  910 

Dickinson  v.  Coward  693.  095 

Dickinson  ti  Fletcher  186 

Dickinson  i;.  Hattield  921 

Dickinson  v.  Shee  1226 

Dickinson  r.  Stidolph         181,  910,  915 
Dickinson  r.  Swatman  918 

Dickinson  v.  Valpy  204,  72i 

Dicks  v.  Brooks  1595 

Dickson  r.  Evans  854 

Dickson  v.  E.  of  Wilton  815 

Digbv  V.  Atkinson  215 

Diggle  V.  Higgs  817 

Diggle  V.  Lond.  &  Blackwall  Ry.  Co., 

841,  845 
Dilkes.  Re  908 

Dilley  v.  Matthews  1084 

Dimond  v.  Vallaiice  463 


xliii 


PAGE 

178 

904 

1496 

•;utSiiigh 

(;."')7 


Disney  c.  Longbourne  478 

Di  Sola,  Dncli.,  r.  Phillipps  1216 

D'Israeiic.  Joivett  185S,  1509 

Ditclnnan  /•.  Woiral  982 

Ditchburn  r.  G'jldsmith  HI 7 

Ditcher  r.  Denison  1(10 

Ditcher  v.  Kenrick  420,  791 

Divoll  r.  Leadbetter  ()!)5 

Dix  ('.  Otis  9HI) 

Dix  r.  Reed  1S8 

Dixon  V.  Birch  207 

Dixon  r.  Cock  1480 

Dixon  I'.  Hamond  727 

Dixon  V.  Lee  1079 

Dixon  r.  Wucklestone  Eryata 

Dixon  c.  Sinciear  1471 

Dixon  r.  Vale  1254 

I  Dixon  V   White  145 

I  Do]>ell  r.  Hutchinson  874,  H76 

1  Dobell  r.  Stephens  9()H 

'  Dobree  v.  Eastwood  45,  19H 

I  Dol)son  V.  Bell  25 

Dobson  V.  Collis  887 

Dobson  V.  Richardson  481 

I  Dodd  V.  Acklom  294,  862,  863,  864 

'  Dodd  r.  Norris         884,  :!89,  1282,  1250 

Doddington's  case  llH 

Dodge  V.  Meech  178 

Dodsley  r.Varley  8;i7 

Dodson  />.  Mackey  926 

Doe  r.  Allen      699,  700,  701,  96^,  1027 

1028 
Doe  V.  Andrews  217,  218,  806,  807,1053, 

1357 
Doe  i\  Arkwriiiht     520,  608,  1858.-  1510 


Doe  v.  Ashley 
Doe  r.  Askew 
Doe  r.  Austin 
Doe  ('.  Barnard 
Doe  V.  Barnes 

Doe  r.  Barton 
Doe  ('.  Batten 
Doe  V.  Bay  tup 
Doe  r.  Beckett 
Doe  V.  Bell 
Doe  i\  Benjamin 
Doe  v.  Benson 
Doe  V.  Beviss 
Doe  V.  Beynon 
Doe  r.  Bingham 
Doe  V.  Birch 
Doe  r.  Birch  more 
Doe  r.  Bird 


1040 

1858 

601),  ()S8 

150 

188,  189,  356,  357. 

1357,  1365,  1507 

122,  128,  125,  127,  5(;l 

54,  699 

124 

936 

855 

1592 

991 

597,  616.  1025,  1598 

112,  1021 

1558 

698 

124 

()77 


(2781) 


xliv 


TAKI-E  OF  CASKS  (  ITKI). 


PAGE 

I'A(5K 

Dwn 

Hold 

813 

Do(>  r 

Gore 

1344 

Doe  V. 

Bower 

362,  1040,  1011 

Doc  r. 

G  OS  ley 

3(il 

Doe  V. 

BraAvn 

1S8 

Doe  ;• 

(Jreen 

602 

Doe  (• 

Bray 

357,  1357 

Doe  V 

Grey 

417 

D.)e  r 

Brayne 

356,  357,  362 

D.)e  ('. 

Grifiin 

217,  5().! 

Doe  V 

Bridi^es 

859 

Doe  r 

Groves 

724 

Doe  V 

Brown 

126 

Doe  (' 

Gunning 

392,  393,  135:? 

Doe  I' 

Bind  oft 

111,  169 

Doe  r 

Gwillim 

1022 

Doe  r 

Burt. 

1019,  lO-.'O 

Doe  ;; 

Hall 

1507 

Doe  ?• 

Burton 

5i)3 

D.ie  (' 

Hanipson 

143 

Doe  V. 

Calvert 

699,  701,  1497 

Doe  (' 

Hardy 

mn 

Doe  I'. 

Caperton 

25,  1571 

Doe  r 

Hares 

117 

Doe  r 

Carpenter 

1036 

Doe  V 

Harris 

784,  853,  917 

Doe  V 

Cartwrij^ht 

378,  1358,  1510 

Doe  V 

Harvey 

374,  377,  50:5 

Doe  (' 

Catomore 

180,  181,  1547 

Doe  V 

Hawkins 

533,  598 

Doe  I' 

Challis 

1441 

Doe  d 

.  Hearle  v.  Hicks                       914 

Doe  r 

Chambers 

1572 

Doe  r, 

Hemming 

1569 

Doe  d 

.  Child  r.  Roe 

679 

Doe  V 

M.  of  Hertford 

793,  8f)l 

Doe  (■ 

M.  ol'Clev 

eland 

151,  1569 

Doe  V 

Hick 

332,  33:5 

Doe  r 

Clifford 

388,  418,  419 

Doe  r. 

Hilder 

5,  157 

Doe  r 

Cockell 

1546 

Doe  V 

Hirst 

1554 

Doe  r 

Col  com  he 

598 

Doe  V. 

Hiscocks   965, 

1015,  10:26,  1027. 

Doe  r. 

Cole 

405,  683 

1028,  1029, 

1030,  10:52,  103;!. 

Doe  r 

Cooke 

150,  156 

1034 

10:59,  1041,  1012 

Doe  /'. 

Corbett 

357 

Doe  ('. 

Hodgson 

154(> 

Doc  V. 

Coulthred 

148,  600,  0f»l 

D.)e  r 

Holton 

9:i4 

Dae  r. 

Courtenay 

«(!') 

Doe  /• 

Home 

117 

Doe  (•. 

Cox 

1194 

Doe  r. 

Howell 

955 

Doe  r. 

Crajio 

194 

Doe  r. 

Howells 

116 

Doe  *'. 

Cranston  n 

1037 

Doe  v. 

Hubbard 

1023,  1029,  1036 

Doe  V. 

Date 

421,  794,  1252,  1253, 

Doe  /■. 

Huddart 

114,  1441 

1265,  1275 

Doe  /•. 

Huthwaite 

1033 

D,>e  r. 

Davies 

36,  37 

,  147,  151,  217, 

Doe  ,". 

James 

420,  783 

556 

561,  905,  1589 

Doe  V. 

Jauncey 

792 

Doe  ?'. 

Deakin 

217,  218 

Doe  r 

Ld.  Jersey 

1019 

Doe  V. 

Derby 

425,  426 

Doe  r. 

Jesson 

218 

Doe  r. 

Derby,  E. 

of 

1440,  1412 

Doe  (;. 

Johnson 

148,  :543 

Doe  (1 

Devine  v. 

Wilson          153,  158:i 

Doe  V. 

Johnston 

864 

Doe  V. 

Durnfbrd 

1564 

Doe  V. 

Jones      147,  158,  600,  601,  602, 

Doe  r. 

Dyeball 

15U 

683,  (i99,  867 

Doe  r. 

Edm-.nds 

63,  936 

Doe  V. 

Keeling 

36,  401,  .585 

D.'ie  r. 

Edwards 

10,  25:) 

Doe  V. 

Kemp 

37,  143,  ;509,  :;ii 

Doe  r. 

Ld.  E<5remont 

1252,  125; 

Doe  V. 

Kilner 

388,  r.MHi 

Doe  r. 

Errington 

121,  253,  1437 

Doe  V. 

Kingston 

955 

Doe  r. 

Evans 

432,  911 

Doe  /'. 

Knight 

1560 

Doe  V. 

Eyre 

96 

Doe  c. 

Lakin 

1505 

Doe  r. 

Fleming 

190,  515 

Doe  i\ 

Laming 

206 

Doe  V. 

Ford 

116,  968 

Doe  i\ 

Langdon  125, 

158,  420,421,791 

Doe  1'. 

Forster 

701 

Doe  V. 

Langfield         385,  600,  601 ,  614 

Doe  r. 

Forwood 

860 

Doe  r. 

Langford 

1529 

Doe  V. 

Foster 

425 

Doe  V. 

Lea 

991 

Doe  r. 

Fowler 

'582 

Doe  Vt 

Leach 

250 

Doe  7'. 

Francis 

127 

Doed 

Leicester 

701 

Doe  V. 

Frankis 

703,  707 

Doe  V. 

Lewis 

169 

Doe  r. 

Galloway 

1036,  10:57 

Doe  r. 

Litherland 

684 

Doe  V. 

Gardiner 

151 

Doe  ),'. 

Lh)yd    28,  114 

,  157,  1403,  1404, 

Doe  u 

Gat  acre 

1355 

1572 

Doe  V. 

Gladwin 

699,  726,  972 

Doe  V. 

Lock 

836 

Doe  t'. 

Glenn 

118 

Doe  V. 

Long 

252 

(2782) 


TAT![,1':  OF  CASKS  CITED. 


xlv 


PAGE 

PA(}K 

Doc  r 

Lyne 

1589 

Doe  ('. 

Rowe 

726 

Door. 

Manifold 

180 

Doe  V. 

Rowlands 

341,  342,  3()2 

Doe  r 

Martin         408,  1015,  1019,1022 

Doe  r. 

Sample 

111,  581,  584 

Doe  V 

Mason 

11 

Doe  1'. 

Scndamore 

7 

Doe  r 

Masse  V 

96,  147 

Doe  V. 

Seaton     114, 

122,  126,  683,  797, 

Doe  !• 

Mee 

1307 

1358,  1441,  1510 

Doe  V. 

Mew 

:?93,  1353 

Doe  V. 

Sisson 

307,  541 

Doe  /• 

Miehael 

217,  588,  599,  600 

Doe  ('. 

Skinner 

549,  614,  616 

Doe  r 

Millett 

156 

Doe  V. 

Sleeman 

542 

Doe  r 

Mills 

124,  126 

Doe  V. 

Smaridge 

194 

Doe  r 

Mihvard 

892 

Doe  V. 

Smart 

356 

Doe  r 

Mobbs 

598 

Doe  i\ 

Smith 

640,  641,  1502 

Doe  /■ 

Moffatt 

851,  856 

Doe  V. 

Lady  Smytht 

)                    123,  124 

Doe  r 

Morgan 

1027 

Doe  V. 

Snowden 

48 

Doe  r 

Morris 

377,  417 

Doe  i\ 

Somerton 

414 

D.:e  r 

Mostyn 

1344 

Doe  v. 

Spence 

48 

Doe  r 

Moulsdale 

158 

Doe  V. 

Spitty 

413,  417 

Doe  f 

MuUiner 

147 

Doe  V. 

Stacey 

598 

Doe  V 

Murless 

1502 

Doe  ('. 

Stanion 

860,  1000 

Doe  (• 

Murrell 

147 

Doe  v. 

Staple 

1.59 

Doe  V 

Needs 

1027 

Doe  V. 

Steel 

735 

Doe  r 

Nepean 

219,  221 

Doe  r. 

Stephenson 

1262 

Doe  r 

Olley 

1507 

Doe  r. 

Stillwell 

186 

Doe  V 

Owen 

418 

Doe  t: 

Stone 

735 

Doe  r 

Palmer 

180,  968 

Doe  r. 

Stratton 

856 

Doe  r 

Passingham 

586 

Doe  r 

Suckennore 

1580,  1581,  1583, 

Doe  /• 

Paul 

1575 

1584,  1587,  1589,  1590 

Doe  /• 

Perce 

583 

Doe  r 

Sutton 

726 

Doe  (' 

Pearsey 

142 

Doe  V 

Sybourn 

156,  157,  736,  -1494 

Doe  (' 

Peck 

698,  699 

Doe  r 

Tan  i  ere 

194,  844 

Doe  r 

Pegge 

123 

Doe  r 

Tarver 

557,  1588 

Doe  r 

Pembroke 

573 

Doe  (1 

Tatham  v.  Wright          511,  512 

Doe  (• 

Penlbld 

148,  1560 

Doe  V 

Thomas 

159,  543,  791,  861 

Doe  r. 

Perkes 

917 

Doe  (• 

Thomson 

1055 

Doe  r 

Perkins 

1200,  1201 

Doe  r 

Thvnne 

600 

Doe  (• 

Perratt 

962 

Doe  r 

Tidl)ury 

147 

Doe  )' 

Pettett 

600,  682 

Doed 

Tindal  r.  Roe                           641 

Doe  V 

Phillips 

581 

Doe  V 

Tucker 

.•557 

Doe  (• 

Plowman 

5 

Doe  (■ 

Turford  200, 

591,  613,  61.5,  616, 

Doe  V 

Poole 

860 

618,  619 

Doe  (! 

Powell   124, 

425,  430,  431,  1574 

Doe  V 

Tyler 

1442 

Doe  1' 

Price 

158 

Doe  V 

Vowles 

593 

Doe  r 

Pulman 

394,  586 

Doe  r 

Wain  Wright 

601,  667,  15(;9 

Doe  V 

Pye 

700 

Doe  ?' 

Walker 

332 

Doe  (? 

Randall 

563,  564 

Doe  V 

Ward 

914 

Doe  r 

Rees 

147,  699 

Doe  V 

Watkins 

48,  796 

Doe  0 

Rhodes 

48 

Doe  V 

Watson 

126 

Doe  J' 

.  Richards 

678 

Doe  V 

We]>lier 

687,  688,  1442 

Doe  r 

.  Rickarby 

600 

Doe  V 

Web.ster 

983 

Doe  ) 

.  Ridgway 

626 

Doe  (' 

Wells 

858 

Doe  / 

.  Ries 

416 

Doe  (' 

Wellsman 

1441 

Doe  ( 

.  Roberts 

115,  535,  655,  1346, 

Doe  r 

Wliitefoot 

402 

1365,  1366,  1465 

Doe  (• 

Whitehead 

344,  354 

Doe  ? 

.  Robson 

594 

Doe  V 

Whitroe 

125 

Doe  t 

.  Roe 

641 

Doe  V 

Wiggins 

123 

Doe  ? 

.  Rollings 

677 

Doe  ( 

.  Wilford 

1029 

Doe  » 

.  Ross         :VM 

I,  418,  419,  494,  495 

Doe  V 

Williams 

146,  147 

Doe  I 

.  Rosser 

1496 

Doe  V 

.  Wilson 

54 

Doe  1 

.  Rouse 

1034 

Doe  / 

.  Wittcomb 

396,  549,  616,  620 

(2783) 


xlvi 


TAIJLK  ()!■'  CASES  (ITKD, 


Doc  r.  Wolloy 

Doe  1'.  AVonihwt'U 

Doe  r.  Wood 

Doe  V.  "Woodhridgo 

Doe  V.  AVrijflit 

Doe  V.  Youiifr 

Doglioni  v.  Crispin 

Doker  v.  Iliuslcr 

Dolby  V.  lies 

Dolder  v.  Bk.  of  England 

Dolder  v.  Ld.  Huntingfield 

Dolling  r.  Evans 

Dolphin  ?•.  Ayhvard 

Dolphin  r.  Robint- 


PAGE 

111,  217 

7(11 

862,  V>(i-2 

(i9!) 

114,  511,  512,  1472 

189 

1433,  147(i 

782 


1447, 
2-29, 


12:; 

3 

24 

877 

1453 

1470 


Don  V.  Lippniann   ()9,  1475,  1478,  1489 

Donagh  r.  Bergin  1323 

Donald  ?•- Suckling  1010 

Donalds()n  v.  Thompson         1475,  1481 

Doncastcr,  ISIay.  of.  v.  Day        423,  491 

Donegall  r.  Tcniplemore  311,  1025 

Donellan  r.  Donellan  829 

Donellan  v.  Kead  861,  886 

Donelson  v.  Taylor  1183 

Don  Francisco,  The  1524, 

Donnison  v.  Elsley 

Dooley  v.  Mahon 

Doorman  ?'.  Jenkins 

Doran's  case 

Dorin  r.  Dorin 

Dorr  r.  Mnnsell 

Dorrett  r.  Meux  392,  1352, 

Dorsey  r.  Dorsey 

Dost  Aly  Khan,  In  goods  of 

Douce,  Re 

Doucet  V.  Geoghegan 

Douglas,  Re  1129, 

Douglas  r.  Corbett 

Douglas  V.  Douglas 

Douglas  V.  Ewing 

Douglas  V.  Fellows       1027 

Douglas  V.  Forrest 

Douglas  r.  Holme 

Douglas  r.  Saunderson 

Douglas  V.  Tousev  330,  337,  1259 

Doder  r.  Child  1495 

Dover  t:  Maestaer  363 

Dowdell  V.  Australian  Roy.  MailCo.  1058 


1540 
544 

1033 
53 

1181 
185 
967 

1366 

1476 

1217 
909 
520 

1132 

42 

228 


PAGK 

Drake  r.  Drake  1032,  103:5.  li..... 

Drake  c.  Marryat  151/ 

Drake  r.  Sykes  665 

Dranquet  v.  Prudhommc  ;541 

Drant  v.  Brown  :i7S 

Drayton  v.  Dale  148,  729 

Dresser  v.  Stansfield  1344 

Drew  )'.  Nunn  212 

Drew  V.  Prior  1582 

Drink  water  v.  Porter         542,  545,  548 
Droitwich  case  666 

Brown  v.  Smith  727 

Druitt's  ca-se  li)91 

Drunimond,  Re  911 

Drummond  v.  Att.-Gen.987,  1016,  1024 
Druramond  v.  Parish  911,  912 

Drury's  case  102 

Drury  ii  Macnamara  1001 

Drvden  r.  Allix  8 

Du'ane,  Re  178 

Du  Bane  r.  Livette  789,  791 

Dublin,  Abp.  of,  v.  Ld.  Trimleston 

1465,  1505 
Dublin,  Corp,  of,  r.  Judge  946 

Dul)lin,  W.&  W.Ry.Co.v.Slattery  ;^9,40 


Dowden  v.  Fowle 
Dowling  r.  Dowling 
Dowling  r.  Finigan 
Down  /'.  P^llis 
Downes  r.  Garbntt 
Downes  r.  Richardson 
Downing  v.  Butcher 
Downing  i\  Capel 
Downs  V.  Cooper 
Dowton  V.  Cross 
Doyly's  case 
Drabble  c.  Donner 


Du  Bost  ('.  Beresford 

Duckett  V.  Gover 

Duckett  V.  Williams 

Dudgeon  t'.  Pembroke 

Dufaur  v.  Croi't 

Duiferin  Peer. 

Dufferin's,  Ld.,  case 

DuiHn  V.  Smith 

Duffv,  Re 

Dugdale  v.  Robertson 

Duggins,  Re 

Duke  r.  Ashby 

Dukes  V.  Gostling 
54  i  Dumper  v.  Dnmpet 
1033,  1035  :  Dunboyne,  Ld.,  v.  Brander 

Duncan  r.  Beard 

Duncan  r.  Brady 

Duncan  r.  Hodges 

Duncan  r.  Hill 

Duncan  ?;.  Louch 

Duncan  v.  Lowndes 

Duncan  v.  Scott 
665    Duncan  w.  Tindal 
304,  305    Duncombe  r.  Danicll 
363    Duncuft  v.  Albrecht 
828    Dundas  v.  Dutens 
954    Dundee's  case 
1558    Dun  ford  r.  Tratiles 
333    Dunlop  v.  Higgins 
300    Dunn  v.  Murrav 
125,  669    Dunn  v.  Slee 

668    Dunn  v.  Snowden 
673   Dunn  v.  English 
412    Dunne  r.  Ferguson 
(2781) 


181, 


147.-S 
149 
572 


513,  516 

236 

465 

998 

178 

1356 

1418 

802 

968 

145 

910 

123 

264 

869 

183 

582 

1410 

1563 

201 

274 

205 

Bill,  1351 

850 

679 

892 

885 

673 

712,  713 

197 

1455 

681 

219 

423,  1256 

892,  893 


TABLE  OF  CASES  CITED. 


xlvii 


Diinraven.  LcL.  r.  Llewellyn  539,   541, 
■    543.  548 
Dunsford  r.  Curlewis  36 

Dunston  v.  Paterson  725 

Dupays  v.  Shepherd  5 

Dnpuy  V.  Truman  1204 

Durance,  Re  913 

Durham,  Lady,  Re  910 

Durham,  Bp.  oi\  v.  Beaumont  626,  1262 
Durham  &  Sunderl.  Rv.  Co.  v.  Walker 

836 
Diirlinji;  v.  Loveland 
Durrant  v.  P^riend 
Durrell  v.  Bederley 
Durrell  v.  Evans 
Dutton,  Re 
Dutton  V.  Solomonson 
Dutton  ?'.  Woodman 
Dwyer  v.  Collins 
Dwyer  r.  Rich 

Troup 


Dyce  Sombre  r. 

Dye  r.  Bennett 

Dye  i\  Dye 

Dyer  v.  Best 

Dyer  v.  Dyer 

Dyer  v.  Green 

Dyke  r.   Aldridge 

Dyke  r.  Williams 

Dymock  v.  Watkins 

Dyne  v.  Nutley 

Dysart  Peer. 

Dyson  ti  Wood 

Eade  {'.  Jacob 

Eadon  v.  Jeffcock 

Eads  V.  Williams 

Eagleton  v.  Cutteridge  301.  1551,  1561 

Eagleton  v.  Kingston  1580,  1583 

Earner  v.  Merle  337 

Earl's  Trusts,  Re 

Earl  r.  Lewis 


178 

221 

1212 

389,  878,  948 

1,S2 

899 

663,  703 

416,  417,  805 

141 

216.  347 

463,  4()4 

Errata 

98 

868 

1562 

665 

562,  564 

1224 

1037 

190,  507 

13:56 

477,  481 

145 

1344 


Eccles.  Commiss.  r.  Merral 


Eccles.  Commiss.  r.  Rowe 
Eccleston  v.  Speke 
Eckersley  r.  Piatt 
Eck.stein  v.  Reynolds 
Edan  v.  Dndtield 
Eden  v.  Blake 
Edge  r.  Hillary 
Edge  r.  Strafford 
Edgeworth  v.  Johnston 
p]die  V.  East  India  Co. 
Edie  V.  Kingsford 
Edme,  ex  \). 
Edmonds  v.  Challis 
Edmonds  i'.  Foley,  Ld. 
Edmonds  v.  Foster 
Edmonds  v.  Goater 
Edmonds  v.  Harris 
Edmonds  v.  Walter 
Edmondson  v.  Stevenson 
Edmunds  v.  Downes 
Edmunds  v.  Greenwood 
Edmunds  v.  Low 
Edmunds  v.  Newman 
Edwards,   Re 
Edwards  v.  Bates 
Edwards  v.  Buchanan 
Edwards  v.  Crock 
Edwards  v.  Edwards 
Edwards  v.  Etherington 
Edwards  v.  Hall 
Edwards  v.  Havell 
Edwards  v.  Hodges 
Edwards  v'.  Janes 
Edwards  v.  Jevons 
lid  wards  r.  Jones 
Edwards  v.  Matthews 
11,   1333  I  Edwards  r.  Midi.  Ry.  Co 
585,  1505    Edwards  r.  "R. 


Earle  r.  Picken        381,  383,  739,  l25l  |  Edwards  v.  "Wakefield 
Earp  V.  Henderson  292  j  Edye  r.  Salisbury 

Earp  V.  Lloyd  1524  )  Egan  v.  Cowan 

East  V.  Chapman  324,  1254  i  Egan  v.  Larkin 

East  Lond.  Waterw.  Co  v.  Bailey   841,  '  Egerton  v.  Mathews 

842  !  Egg  V.  Barnett 


PACK 

124,  1d4, 

843 

95 

635,  665 

182,  913 

59 

59,  898,  932 

966 

359 

889 

1043 

6 

375 

1131 

1546 

L534 

138,  m(> 

927 
293 

1198 

140 

878,  924,   926 

484 

1044 
678 
910 
977 

1514 
518 
870 

1002 
890 
227 
248 
931 

1019 
355 
362 
842 
108 
4H4 

1022 

1585 

36,  432,  1572 

871,  88i) 

196 


1319. 


East  Cos.   Rail.  Co.  v.  Broom  842  '  Egremont   Burial   Board  r.  Egremont 


East  Union  Ry.  Co.  v.  East.  Cos.  Ry, 


Co. 

1496 

East.  Union  Ry.  Co.  v.  Symonds 

614, 

617 

Eastland  v.  Burchell 

212 

Ea.stman  v.  Tuttle 

727 

Eastmure  v.  Laws 

1452 

Easton  v.  Carter 

1465 

Eastwood  V.  Kenyon 

884 

Eastwood  V.  Saville 

931 

Eaton  V.  Basker 

848 

Eccles  V.  Harrison 

655 

Iron  Ore  Co.  419 

Ehrenspergen  v.  Ander.son  412 

Eicholz  V.  Bannister  1003 

Eicke  V.  Nokes  805,  923 

212  i  Elden  v.  Keddell  392,  1353 

Eldridge's  case  744 

Eldridge  v.  Knott  150,  153,   155 

Elect.  Teleg.    Co.,  Re,  ex  parte  Bnnn 

1091 
Eley  V.  Positive  Govt.  &c.  Co.  8-18,  887 
Elias  V.  Griffith  1256 

Eliot  t).  Allen  300 

(2785) 


xlviii 


TABLE  OF  CASES  CITKl). 


PACK 

Klkin  V.  Jiinson         ;)44,   345,   'M(i,  354 

Klkington  v.  Holland  953 

Ellenboiougii's,   LcL,  case  673 

Ellershaw  v.  lioljinson  337 

Ellice,  lie  182 

Ellice  V.  Roupell  490 

Elliott  r.  Dean  Errata 

Elliott  r.  Elliott  58 

Elliott  r.  Kemp  148 
Elliott  r.  North  East  Rail.  Co.  145 
Elliott  r.  South  Devon  Rail.  Co.        65 

Elliott  r.  Thomas  895 

Ellis  V.  Co-wne  620 

Ellis  r.  Desilva  57 

Ellis  r.  Ellis  386 

Ellis  i:  Houstoun  185 

Ellis  r.  Saltan  808 

Ellis  r.  Thompson  196 

Ellis  r.  Watson  663,  734 

Ellmakerr.  Buckley  1225 

Elmer  r.  Creasy  486 

Elmore  r.  Kingscote  874 

Elmore  c.  Stone  897 

Elms  V.  Elms  917 

Elsam  v.  Faucett  334,  335 

Elston  V.  "Wood  665 

Elton  r.  Larkins  676,  1236 

Ehves  r.  Elwes  971 

Elwood  r.  Bullock  1415 

Elworthv  r.  Sandford  401 

Emanuel  r.  Kobarts  729 

Embleton  r.  Brown  *           142 

Emerson  r.  Blondon  675 

Emery  ;■.   Barnett  126 

Emery  v.  Chichero  225 

Emery  v.  Grocock  157 

Emery  v.  Twombly  1572 

Emma,  The  1531 

Emmerson  v.  Heelis  893,  948 

Emmerton  v.  Matthews  1004 

Emmet  r.  Dewhirst  975 
Emmott  V.  Marchant,  Halkett,Claimt., 
1315,   1406 

Emsley,  Re  562,  564 

Engerr.  Fitcli  1001 

Eugell  V.  Fitch  1001 

England  r.  Downs  1017 

England  v.  Slade  157 

English  V.  Tottie  1530 

English  Jt.  Stock  Bk.,  Re  1091 

Englishman,  The  225 

Ennis's  case  662 

Enokin  r.  Wylie  1484 

Enos  V.  Tuttie  523 

Ensign  v.  Webster  736 

Enticknap  v.  Rice  1263 

Entwistle  v.  Davis  891 

Entwistlev.  Dent  1342 

Enj-on,  Re  902 


Eri«kine  v.  Murray 
Ernest  v.  Nicholls 
Erskine  r.  Adeane 
Erwin  v.  Saunders 
Escott  r.  Mastin 
Espey  /•.  Lake 
Esse.x,  Countess  of,  case 
Esse.K  Witches 


PAOB 

5 

842 
1002 
9S0 
1319 
173 
497 
741 

Euston,  Ld.,  r.  Ld.  Hy.  Seymour    912 
Euston  r.  Smith  489 

Evans  v.  Angell  1041 

Evans  v.  Beattie  681 

Evans  v.  Birch  348 

Evans  v.  Dallow  917,  918 

Evans  r.  Davies  932 

Evans  r.  Evans  &  Robinson  1451 

Evans  v.  Fryer  240,  246 

Evans  v.  Getting  1518 

Evans  v.  Jones  1540 

Evans  r.  Morgan  386,  515 

Evans  v.  Nichol  727 

Evans  v.  Phillips  1275 

Evans  v.  Fowls  1051 

Evans  v.  Rees  542,  550.  551,    553, 

585,   1049,  1120,   1437,   1496,  1564 
Evans  v.  Roberts  893 

Evans  i\  Roe  975 

Evans  r.  Simon  928 

Evans  r.  Sweet  408 

Evans  v.   Taylor     540,  541,  551,   134.3, 

1346 
Evans  r.  Watson  1058 

Evans  r.  Williamson  1 H4 

Evelyn  v.  Haynes  1450 

Everard  v.  Poppleton  953 

Everett  v.  Everett  1046 

Everett  v.  Lowdham  1193 

Everett  v.  Robertson  922 

Everett  v.  Youells  1470 

Everingham  r.  Roundell  496 

Ewart  V.  Jones  1135 

Ewart  V.  Williams  622 

Ewer  V.  Ambrose  1238,   1311 

Ewing  r.  Osbaldiston  1254 

Exall  V.  Partridge  417 

Exeter,  INIav.  of,  v.  Warren     154,  oiUi, 

598,  600 
Evre  V.  Smith  1464 

F."  falsely  called  D.  r.  D.  213 

Fabrigas  r.  Mostyn  670 

Facey  v.  Hurdom  51 

Fairlie  r.  Christie  1548 

Fairlie  r.  Denton  703 

Fairlie  v.  Hastings  533,  534 

Fairman  v.  Oakford  196 

Fairtitle  v.  Gilbert  117 

Faith  V.  M'Intyre  359,  364 

Falconer  v.  Hanson  429,  652 

Falkner  &  Bond,  the  case  of     744.  745 


(2786) 


TABLE  OF  CASES  CITED. 


xlix 


PAGE 

Fallon  V.  Robins  *J71 

Falmouth,  E.  of,  v.  Moss  788 

Fahujutl),  E.  of,  r.  Koberts  430,  1546, 
1532,  1572,  1574 
Falmouth,  E.  of,  v.  Thomas  894 

Fanny  Curvill,  The  225 

Farina  v.  Home  898 

Fartjuluir  v.  Southey  1551,   1557 

Fanjulmrson  r.  Seton  1454 

Farsjuhaison  i:  Tweedale,  In  re  181 
Fanah  v.  Keat  1081 

Farrar  r.  Beswick  2U4 

Farrar  v.  Hutchinson  654,  736,  9f)5 
Farrar  v.  Stackpole  1019 

Farrar  v.  St.  Catherine's  College  1032, 

1U35 
Farringdon  r.  Clerk  727 

Farrington  v.  Donohue  888 

Farrow  v.  Maj'es  956 

Farrow  v.  Wilson  1008 

Far  well  ?'.  Hilliard  1444 

Fasset  r.  Brown  169 

Faulder  r.  Silk  1429 

Faulds  V.  Jackson  902,  904 

Faulkner  v.  Brine  1218 

Faussett  r.  Faussett  535,  674 

Faviell  v.  East.  Count.  Rail.  Co.  728 
Fawcett  t!.  Case  49,   195 

Fawcett  v.  Jones  178 

Fawcus  V.  Sarslield  998 

Fawkes  v.  Lamb  979,  1012 

Fazakerley  v.  Wiltshire  23 

Fearn  r.  Lewis  925 

Fearnside  r.  Flint  936 

P^aubert  r.  Turst  1217 

Felkin  r.  Herbert,  Ld.  1537 

Fellowes  r.  Clay  96 

Fellowes  r.  Williamson  521 

Feltham's  Trusts,  Re  1033 

Fenn  v.  Griffith  374 

Fennell  v.  Tait  1087 

Fenner  v.  Lond.  tt  S.  E.  Ry.  1527 

Fenton  v.  Emblers  888 

Fenwick,  Re  914 

Fenwick  v.  Bell  1212,  1213 

Fenwick  v.  Laycock  734 

Fenwick  v.  Reed  793 

Fenwick  v.  Thornton  664 

Ferguson  r.  :Mahon  9,  1474,   1478, 

1480,  1489 
Fernandey  i\  Glvnn  1555 

Fernandez,  e.\  parte   1195,  1193,  1246, 

1247 
Fernley  v.  Worthington  400,   1427 

Ferrand  r.  _Milligan  1592 

Ferrer  v.  Oven  1343 

Ferrers  v.  Arden  14  J7 

Ferrers,  Jjd.,  r.  Shirley  1581 

Ferris  v.  Goodburn  976,   1044 


PAGE 

Fesenmayer  v.  Adcock  149 

Feversham,  Ld.,  v.  Emerson  115 

Few  V.  Guppy  790,  1534 

Fiddey,  Re  119 

Field  V.  Flemming  640 

Field  V.  Gt.  North.  Ry.  Co.  57 

Field  V.  Hemming  640 

Field  ('.  Holland  664 

Field  V.  Lelean  980,  996 

Field  V.  Woods  298,  729 

Figg  ?J.  Wedderburne  568 

Filipowski  ;;.  Merryweather  207 

Filmert'.  Gott  967,  970 

Financial  Ins.  Co.,  Re  1091 

Finch  V.  Bp.  of  Ely  1287 

Finch  ('.  Finch  181,  403,  828,  1242 
Finlay  v.  Bristol  &  Ex.  Rail  Co.  843 
Finlay  ?•.  Finlay  69 

Finnerty  v.  Tipper  324 

Finnej'  v.  Beesley  462 

Finney  v.  Finney  1434 

Finney  v.  Forward  484 

Finney  v.  Grice  185 

Finn's  case  430 

Firkin  v.  Edwards  411 

Firth,  ex  p.,  re  Cowburn  173 

Firth,  in  re,  ex  p.  Schofield  1249 

Fischer  v.  Hahn  462,  465 

Fischer  v.  Izataray  465 

Fischer  v.  Popham  904 

Fischer  (;.  Sztai'ay  465 

Fisher  r.  Clement  106 

Fisher  r.  Dudding  1335 

Fisher  v.  Heming  794 

Fisher  v.  Joyce  342 

Fisher  r.  Keane  148:) 

Fisher  v.  Kitchingman  1335,  1338 

Fisher  v.  Lane  1336 

Fisher  r.  Magnay  725 

Fisher  ^^  Ogle  1481,  1482 

Fisher  v.  Owen  477,  478,   1243 

Fisher  f.  Ronalds  1247,   125  5 

Fisher  v.  Samuda  496 

Fisher  v.  Thames  June.  Rail.  Co.  301 
Fishmongers'  Co.  v.  Dimsdale  1571 
Fishmongers' Co.  v.  Robertson  124,  710, 
735,  1571 
Fitch  11  Jones  345,  346 

Fitch  r.  Smallbrook  1335 

Fitz  V.  Rabbits  402 

Fitzgerald  v.  Dressier  881 

Fitzgerald  v.  Elsee  1567 

Fitzgerald  v.  Fitzgerald  424,  1410 

Fitzgerald  v.  O' Flaherty  653 

Fitzgerald  v.  AVilliams  266 

Fitzgibbon  v.  Greer  484 

Fitz- James  v.  Moys  1173 

Fitzmaurice  r.  Bayley  877,  947 

Fitzmaurice,  Re  936 


D  LAW  OF  EVID. — V.  I. 


(2787) 


TABLE  OF  CASES  CITED. 


PAGE 

Fitzpatrick  r.  Dunphy  149 

Fitzrov.  Sir  C,  lie  81:} 
Fitzwulter  Peer.      575,  576,  578,  158-<, 
158y,   1590 

Flad  Oyen,  The  1475 

Flagg  r.  Mann  1184 

Flannerv's  ease  lU(j5 
FlannerV  v.  Waterford&C.  Ry.  Co.  2!)7 

Fleet  r.  'xMurton  309,  995 

Fleet  V.  Perrins  i;ill 

Fleming  v.  Fleining  1027 

Flercher  v.  Braddyll  197,   1210 

Fletcher  r.  Calthrop  KilJ 

Fletcher  v.  Froggatt  643 

Fletcher  v.  Gillespie  977 
Fletcher  v.  Gt.  West.  Rail.  Co.         145 

Flint!  V.  Calew  981 

Flitters  v.  Allfrey  1447 

Flory  V.  Denny  8:57 

Flower  v.  Darby  48 

Flower  v.  Herbert  709,  723 

Floyd  V.  Barker  1425 

Flureau  v.  Thornhill  1000 

Fogarty  r.  Smith  20 

Foggassa's  case  10 

Foley  V.  Tabor  357 

Folkes  V.  Chadd  319,  1208,  1210 

Follett  r.  Jefferyes  784,  800 

Fonsick  r.  Agar  429 

Foot  V.  Stanton  905 

Foot  V.  Tracy               '  337 

Foote  t\  Hayne  792 

Foquet  v.  INIoor  859 

Forbes'  case  1091 

Forbes  v.  Forbes  228 

Ford  V.  Ager  96 

Ford  V.  Batley  1035 

Ford  V.  Cotes  worth  196 

Ford  V.  Elliott  526 

Ford  V.  Ford  962 

Ford  V.  Tennant  80:5 

Ford  V.  Yates  980 

Fordham  t\  Wallis  661 
Foreman  r.  Free  Fishers  of  Whitestable 

154 

Forman  v.  Wright  263 

Forrest  t\  Forrest  869 

Forshaw  r.  Chahert  1548 

Forshaw  r.  Lewis  473,  1526,  1530 

Forster  r.  Clements  730 

Forster  v.  Forster  366,  1573 

Forster  v.  Hale  868 

Forster  v.  IMackreth  204 

Foster  ?•.  Rowland  880 

Forsyth  V.  Bristowe  938 

Forsythe  v.  Norcross  617 

Fort  V.  Clark  574 

Eortescue  v.  Fortescue  1535 

Forth  V.  Stanton  881 

(27 


Foster  v.  Allanson 
Foster  v.  J'.ank  of  England 
Foster  v.   Blakeloek 
Foster  v.  Charles 
Foster  r.  Compton 
Foster  r.  Hall 


PAGE 

977 

1287 
7:57 
106 

1:335 
794 


Foster  r.  Jolly  9f)9,  980 

Foster  i'.  IMentor  Life  Ass.  Co.  6:5,  719 

732,  996 
Foster  ?•.  INI'Mahon  592,  687 

Foster  v.  Pointer  245,  41:5,   417 

Foster  V.  Siiaw  491,   1423 

Foster  v.  Steele  224 

Foulkes  V.  Sellway  336,  514 

Fountain  v.  Boodle  140,  1533 

Fountain  r.  Young  794 

Fowell  V.  Forrest  972 

Fowkes  V.  Pascoe  870,   1043 

Fowler  v.  Coster  1558 

Fowler  v.  Fowler  420,  971,  1043 

Fowler  v.  Savage  1424 

Fowlis  r.  Davidson  347 

Fox  V.  Clifton  531,  722 

Fox  V.  Fox  869 

Fox  V.  JoTies  1288 

Fox  V.  Waters  381,660 

Fox's  case  1514 

Foxcr;)ft  v.  Nevens  681 

France  v.  Lucy  409 

Franchot  ;;.  Leach  967 

Francis  v.  Cockrell  999 

Francis  v.  Dichfield  984,  1042 

Francis  v.  Hawkesley  922 

Francisco  v.  Gilmore  .450 

Francklin's  case  35 

Frank  r.  Frank  1429 

Frankum  v.  Ld.  Falmouth  251 

Eraser,  Re  913 

Eraser  v.  Burrows  1529 

Eraser  v.  Hill  42 

Eraser  v.  Pendlebury  121 

Fray  v.  Blackburn  1425 

Eraj'es  r.  Worms  148") 

Frederick  v.  Att.-Gen.  556 

Free  v.  Hawkins  731,  980 

Free  Fisliers  of  Whitstable  v.  Foreman 

154 
Free  Fishers  of  Whitstable  ik  Gann  153 
Freeman  r.  Arkell  397,  813 

Freeman  v.  Baker  1354 

Freeman  v.  Cooke     114,  115,  719,  725, 

73:5 
Freeman  ?•.  Cox  702 

Freeman  /;.  Freeman  914 

Freeman  v.  Gainsford  891 

Freeman  v.  Phillipps       540,  551,  557, 

558 
Freeman  v.  Pope  171 

Freeman  v.  Read  540,  541,  1346 

88) 


TABLE  OF  CASES  CITED. 


li 


PAGE 

Freeman  v.  Steggal        640,  1546,  1570 

Freemau  v.  Tatham  647 

Freeman  v.  Walker  734 

Freemmilt  v.  Dedire  1215 

Freestone  v.  P>utcher  211 

French  r.  French  14;)2 

Freston,  in  re  1129 

Fricker's  case  1091 
Friend  v.  Lond.  Chat.  &  D.  Ry.     152S 

Frith,  Re  909 

Frith  ('.  Barker  991 

Frontine  r.  Frost  348 

Frost  r.  Holloway  1250 

Frost  V.  Oliver  227 

Froude  v.  Hobbs  36 

Fry  i\  Chapman  376 

Frv  r.  Hill  51 

Fry  V.  Wood  429,  432 

Fryer  r.  Wiseman  1186 

Fuentes  ?'.  Montis  147 

Fuller  r.  Crittenden  736,  965 

Fuller  V.  Fenwick  1496 
Fuller  V.  Fotch              1359,  1365,  1430 

Fuller 'r.  Hampton  689 

Fuller  V.  Pattrick  1569 

Fuller  V.  Prentice             "  1058 

Fuller  V.  Redman  923 

Fulmerston  v.  Steward  860 

Fult;m  V.  Andrew  178,  179 

Fulwood's,  Lady,  case  1273 

Furber  v.  King  479 

Furley  v.  Wood  991 

Furlong  v.  Howard  420 

Furly  V.  Newnham  1086 

Furneanx  v.  Hutchins  307 

Furnell  v.  Stackpoole  11,  1325 
Furness  v.  Meek                   58,  63,  1560 

Fursdon  ?;.  Clogg  591 

Futcher  v.  Futcher  297 

Fyler  r.  Givens  872 

Fyson  v.  Chambers  148,  149 

Fyson  v.  Kemp  1318 

Gabay  v.  I.loyd  201 

Gabbett  v.  Clancy            '  1346 

Gad  i;.  Houghton  982 

(Jainsford  v.  Grammar  678,  803 

Galbraith  v.  Neville  1489 

Gale  V.  I.indo  721 
Gale  V.  Williamson            939,  970,  977 

Galsworthy  v.  Norman  1527 

Gananogue,  The  214 

Ganer  v.  Lanesborongh  1217 
Gann  r.  Free  Fishers  of  Wliitstable  153 

Gann  v.  Gregory  180 

Gann  v.  Johnson  153 

Garbutt  v.  Simpson  1232 

Garcias  v.  Ricardo  1474 
Garden  v.  Cresswell      1054,  1079,  1080 

Gardener  v.  Ennor  172 

(2 


Gardner,  Re 
Gardner  v.  Croasdale 
Gardner  v.  Dangerfield 
Gardner  v.  Grout 
Gardner  v.  Irvin 
Gardner  v.  Irwin 
Gardner  v.  McJIahon 
Gardner  r.  Moult 
Gardner  Peer. 
Gardner  v.  Walsh 
Gardom,  ex  parte 
Garey  v.  Nicholson 
Garey  v.  Pike 
Garland,  Re 
Garland  r.  Beverley 
Garland  r.  Cope 
Garland  r.  .Jacomb 
Garland  v.  Scoones 
Gailoch  r.  Geortner 
Garner  v.  Garner 
Garnet  r.  Ball 
Garuett  v.  Ferrand 
Garnett  v.  Woodcock 
Garnier,  Re 
Garnons  v.  Barnard 
Garrard  v.  Lewis 
Garrard  v.  Tuck 
Garrells  t\  Alexander 
Garrett  v.  Handley 
Garth  v.  Howard 
Gartside  v.  Outram 


PAGE 

494 

274 
1537 

897 

1535 

1535 

922,  926 

670 

516,  571 

154!) 

205 

644 

293 

1033 

1033 

600,  601 

730 
1335 

196 
1033 

671 

1425 

46 

1483 

547 
1561 

158 
1580,  1583 

982 
533,  536 

784' 


Gartside  v.  Silkstone,  &c.  Co.  169 

Garvin  v.  Carroll  1238,  1239,  1311,  1312 
Gas  Light  &  Coke  Co.  ■;;.  Turner  116 
Gaskill  r.  Skeene  703 

Gass  V.  Stinson  1257 

Gathercole  v.  Miall  397 

Gatty  V.  Fry  7:29 

Gaunt  V.  Johnson  1053 

Gaunt  r.  Wainman  121,  1437 

Gausden,  Re  907 

Gay  V.  Hill  954 

Gay  V.  I^abouchere  476 

Gaze  i\  Gaze  904 

Geach  v.  Ingall  341,  342,  362 

Geaves  v.  Price  914 

Gee  V.  Ward  551,  558 

Gerry  v.  Hopkins  1287 

Geill  v.  Jeremy  44 

Geils  V.  Geils  1476 

Gen.  Steam  Nav.  Co.  v.  Brit.  &  Col.  St. 
Nav.  Co.  226 

Gen.  Steam  Nav.  Co.  u.  Guillou    1475, 
1478,  1485 
Gen.  Steam  Nav.  Co.  r.  Hcdley  8 

Gen.   Steam  Nav.  Co.  v.  Lond.  &  Ed. 
Ship  Co.  56' 

Gen.  Steam  Nav.  Co.  v.  Mann  8" 

Gen.  Steam  Nav.  Co.  v.  Morrison        8 
789) 


Hi 


TADLE  OF  CASES  CITED. 


PAGE 

page: 

GoninjT  v.  The  Stato 

:{54 

Glad  well  v.  Turner 

45 

Geort^e's  Estate,  Ke 

1040' 

Glannibanta,  The 

1595 

Geor<^e  v.  Pritchard 

1001) 

Glass  r.  Beacli 

423 

Geor<;c  v.  Surrey 

ir,80 

Glassc;)tt  ?•.  Copper  Miners' 

Co.       1537 

George  r.  Th')iiii)snn 

411 

Glave  V.  W^entwortli 

647 

Geralopulo  7-.  Wieler 

392 

Gleadow  v.  Atkin      589,  5!! 

7,  609,  Oil 

Gorish  v.  Oliartier 

321 

Glencairn  Peer. 

229 

German  Mining  Co.,  Re 

204 

Glengall.  E.  of,  v.  Barnard 

1043 

Germania,  The 

501 

Glerawley's.  Ld.,  Civse 

674 

Gervis  v.  Grand  West.  Canal  Cd.    ir,02 

Glory,  Re,  The 

1098 

Gery  v.  Redman 

142,  0)0 

Glossop  V.  Heston  &  Isleworth   Local 

Geyer  r.  Acjuihir 

1130 

Board 

1186 

Geyer  v.  Irwin 

1131 

Gh)ssop  i\  Jacob 

21 

Gibblehouse  v.  >Strong 

000,  08 1 

Glossop  r.  Pole 

1429 

Gibbon  v.  Budd 

695 

Glover  v.  Hall 

1524,  15:57 

Gibbon  v.  Featherstonhaugh 

196 

Glubb  V.  Edwards 

1571 

Gibbon  v.  Young 

988 

Glyn  V.  Caullield 

793,  1534 

Gibb  m's  Case 

1514 

Glyn  ?;.  Houston 

1288 

Gil)bons  v.  Powell 

411 

Glynn  v.  Bk.  of  England 

589,  605 

Gibbons  v.  Wilcox 

663 

Goate  V.  Goate 

922 

Gibbs  ('.  Cruilisliank 

1443 

Goblet  V.  Beechey 

986,  1017 

Gib])s  1'.  Fremont 

59 

Godard  v.  Gray 

1479 

Gibb.^  ('.  Guild 

93 

Goddard's  case 

122 

Gibbs  r.  Phillipson 

1128 

Goddard  r.  Parr 

1228,  1230 

Gibbs  V.  Pike                     109, 

140,  1593 

Gidefroy  v.  Dal  ton 

53 

Gibbs  V.  Ralph 

1470 

Godefroy  v.  Jay 

1335 

Gibson  v.  Kaghott 

94f! 

Godfrey  v.  Macaulay 

1421 

Gibson  V.  Doeg 

160 

Godfrey  v.  Turnbull 

1421 

Gibson  v.  Doey 

160 

Godson  V.  Smith 

1414 

Gibson  v.  East  India  Co.   838 

842,  813 

Godts  V.  Rose 

996 

Gibson  v.  Holland 

876,  878 

Godwin  v.  Culley 

023,  927 

Gibson  r.  Hunter 

320 

Godwin  v.  Francis            878 

,  879,  1001 

Gibson  v.  M'Carty 

1445 

Gjff7».  Gt.  North.  Ry.  Co. 

842 

Gibson  r.  Small                  996 

997.  9:)8 

Goff  r.  Mills                   1079, 

1080,  1031 

Giffard  v.  Williams 

1378 

Gofifin  V.  Donelly 

1126 

Gilbert  ?'.  Endean 

1189 

Gold  Co.,  Re,  The 

1092 

Gilbert  v.  Smith 

714 

Gold  ('.  Canham 

1489 

Gilbert  v.  Sykes 

883 

Golden  v.  Gillam 

171 

Gilchrist  v.  Bale 

516,  518 

G  )ldicutt  r.  Towmsend 

885 

Gildea  v.  Brien 

1126 

Goldie  V.  Shuttleworth 

611 

Giles  V.  Dyson 

737 

Golding  V.  Wharton  Salt  Works     242, 

Giles  V.  Siney 

1336 

1595 

Giles  V.  Warren 

913,  916 

Goldshede  v.  Swan 

1019 

Gillanders  ?'.  Ld.  Rossmore 

890 

G  )ldstein  v.  Foss 

66 

Gillard  v.  Bates 

807 

Goldthorpe  v.  Hardman 

109 

Gillespie  v.  Cumming 

1335 

Gomm  V.  Parratt 

1524 

Gillespie  r.  IMoon 

970,  971 

Gomp(u-tz  t\  Bartlett 

294,  1004 

Gillespie  v.  Russell 

1470 

Goodall  V.  Little        792,  79 

3,  795,  801 

Gillett  V.  Abbott 

121 

Goode  V.  Job 

937,  1218 

Gillett  V.  Gane 

1033 

Goodered  v.  Armour 

416 

Gilliat  V   Gil  Hat 

1041 

G;)odier  v.  Lake 

402 

Gillies  /'.  Smither 

1566 

Good  in  v.  Smith 

1430 

Gillis  V.  Gillis 

228 

Goodinge  v.  Goodinge 

1022 

Gillman  v.  Connor 

50 

Goodman  r.  Chase 

882 

Gilpin  V.  Fowler 

140 

Goodman  v.  Goodman 

190,  515 

Giraud  ?'.  Richmond 

887,  975 

G.iodmau  v.  Griffiths 

874,  876 

Gisborne  ?'.  Hart 

1344 

Goodman  v.  Harvey 

1526 

Glvens  v.  Bradley 

333 

Goodman  v.  Holroyd 

482,  485 

Glad  well  v.  Steggall 

265 

Goodman's  Trusts 

184 

(2790) 


TABLE  OF  CASES  CITED. 


liii 


PAGE  I 

Goorlright  v.  Cordwent  (idi) 

Guodriglit  r.  Davis  091) 

Goodright  v.  Harwood  915 

Goodiiglit  V.  Hicks  332 

Goodright  v.  Hodges            "  870 
Goodright  v.  Moss    55G,  5G9,  562,  566, 
574,  817,  818 

Goodright  r.  Saul  571 

Goodiight  V.  Straplian  15(53 

Gocdtitle  r.  Baldwin  153 
Goodtitle  r.  Biaham       356,  1209,  1590 

Goodtitle  r.  Dew  542 

Goodtitle  i:  Jones  159 

Goodtitle  r.  Lammiman  23  i 

Goodtitle  v.  Milburn  186 

Goodtitle  r.  Southern  1037 

Goodwin  v.  Hubbard  869 

Goodwin  v.  Lordon  1132 
Goodwin  r.  Robarts                        7,  724 

Goodwin  v.  West  1059 

Goodwvn  V.  Clieveley  51 

Goold  V.  White  229 

Goom  V.  Atlalo  389 

Gordon's  case  1085 

Gordon's,  Ld.  George,  trial  521 

Gordon  v.  Gordon  962 

Gordon  v.  Ld.  Reay  911 

Ciordon  v.  Secretan  1569 

Gore,  Re  906 

Gore  r.  Bethel  226 

Gore  V.  Bowser  803 

Gore  V.  Gahagan  178 

Gore  r.  Harris  803 

Gore  v.  Hawsey  703 

Gore  r.  Wright  863 

Gorham  v.  Canton  52J 

Gorrissen  v.  Perrin  989 

Gorton  v.  Dyson  1353 

Gosbell  r.  Archer  947 
Gostbrd,  Ld.,  r.  Robb                383,  815 


Goslin  V.  Corry 

Gosling  r.  Birnie 

Goss  V.  Ia\.  Nugent 

Go.ss  t\  Quinton 

Goss  V.  Watlington 

Go.sset  V.  Howard  107,108,166,  l(i7, 1094 

Gott  r.  Gandy  294,  10U2 

Goudy  r.  Duncombe  49 

(tould  r.  CViombs 

Gould  V.  Gould 

Gould  V.  Lakes 

Gould  V.  Shirley 

Gould  V.  White 

Gouldie  v.  Gunston 

Gouldstone  v.  Woodward 

Gouldsworth  v.  Knights 

Gourley  v.  PlimsoU 

Governor  v.  Bell 

Governor  v.  Jeffreys 


PAGE 

Go  wan  v.  Fo.stcr  931 

Gowan,  ex  parte  1596 

Grady's  case  169 

Graham,  Eliz.,  Re  1463 

Graham,  Re  914 
Graham  v.  Birkenhead  Rail.  Co.       720 

Graliam  v.  Cox  197 

Graham  v.  Dyster  1237,  1545 

Graham  v.  Glover  1087 

Graham  v.  Hope  1421 

Graham  r.  Oldis  408 

Graham  v.  Whichelo  862 
Grand  June.  Can.  Co.  v.  Dimes      1479 

Grant  r.  Bagge  24 

Grant  r.  Fletcher  389 

Grant  r.  Gould  1431 
Grant  v.  Grant  674,  828,  1016 
Grant  v.  Jackson         662,  663,  691,  735 

Grant  r.  M'Lachliu  1482 

Grant  r.  ]\Iaddox  988 

Grant  i:  Moser  24 

Grant  v.  Thompson  1209 

Gravenor  r.  Woodhouse  126 

Graves  v.  Key  736 

Graves  v.  Legg  200 

Graves  v.  M' Car  thy  1130 

Graves  v.  Weld  893 

Gray  v.  Boswell  971 

Gray  r.  Cookson  1427 

Gray  v.  Dinnen  54 

Gray  v.  Haig  137 

Gray  v.  Harper  1015 

Gray  y.  Palmers  C63 

Grav  V.  Pearson  962 

Gray  v.  Pentland  815,  816 

Gray  v.  Warner  172 

Grayson  v.  Atkinson  909 

Grayson  v.  Wilkinson  1573 

Great  Eeastern,  The  227 
Great  North.  Rail.  Co.  r.  Sheppard  206 


1592    Great  West.  Coll.  Co.  v.  Tucker  486 

727    Great  West.  Rail.  Co,  v.  Bennett  145 

963,  973,  974,  975    Great  West.  Rail.  Co.  v.  Blower  998 

645    Great  West.  Rail.  Co.  v.  Willis  5:34 

591,  681    Greaves  v.  Ashlin  9;-^0 

Greaves  v.  Fleming                        •  716 

Greaves  v.  Greenwood  218 

Greaves  r.  Hunter                       ■  1582 

1549  i  Greaves  v.  Legg  200 

203  !  Greaves  v.  ToUeld  958 

1024  I  Greely  v.  Smith                       1437,  1470 

Green  i\  Brown  223 

Green  v.  Cresswell  884 

Green  v.  Gatewick  432 

Green  v.  Green  1451 

Green  v.  Howard  1023 

Green  v.  Humphreys  927 

Green  v.  Jackson            •  192 

Green  v.  Kopke  205 


926 

229 

723 

Errata 

125 

473 

1517 

1517 


(2791) 


liv 


TABLE  OF  CASES  CITED. 


PAGE  j 

Green  v.  London  Gen.  Omn.  Co.      8  li  ! 
Green  r.  New  Kiver  Co.  142:2  ; 

Green  v.  Sevin  2!).')  j 

Green  v.  Tribe  911 

Green  v.  Waller  10 

Green  v.  Weaver  72.'{ 

Greenfield  v.  Reay  484 

Greenish  v.  White  TSS 

Greenlaw  v.  King  790 

Greenough  v.  Eccles  1218 

Greenough  v.  Gaskell  783,  785,  787,  801 
Greenough*;.  M'Clelland  981 

Greenshield  v.  Pritchard  1131 

Greenshields  v.  Crawford       1576,  1577 
Greenway,  ex  parte  404 

Greenwich  Bd.  of  Works  v.  Maudslay, 

154 
Gregg  V.  Wells  719,  724 

Gregg's  case  743 

Gregory  v.  Doidge  126 

Gregory  r.  Duff  247 

Gregory  v.  Howard  690 

Gregory  r.  Mai'ychurch  119G 

Gregory  v.  Parker  676 

Gregory  w.  Queen's  Proctor  180 

Gregory  v.  Tavernor  1205 

Gregory  v.  Thomas  333 

Gregory  v.  West  Mid.  Ry.  Co.  93ri 

Gregory's  Settlm.,  Re  1033 

Gregson  v.  Ruck  390 

Grellier  v.  Neale  169 

Gremaire  v.  Le  Clerk  Bo  is  Valon     192 
Grenfell  v.  Girdlestone  923 

Gresham  Hotel  Co.  v.  Manning  510,511 
Gresley  v.  Mously  118,  172 

Greves,  Re  910 

Greville  v.  Chapman  1212 

Greville  v.  Stulz  406,  1342 

Greville  v.  Tylee         178,  180,  181,  919 
Grew  V.  Hill  713 

Grey  v.  Young  516 

Grice  v.  Richardson  890 

Grigg's  case  1159,  1161,  1167 

Griffin  v.  Brown  1423 

Griffith  V.  Davis  797,  803 

Griffith  V.  Ricketts  420,  1221 

Griffith,  in  re  177 

Griffiths,  ex  parte  10-6 

Griffiths  V.  Griffiths  909,  Errata 

Griffiths  V.  Jenkin  890 

Griffiths  V.  Lond.  &  St.  Kath.  Docks  Co. 

Errata 
Griffiths  V.  Rigby  62 

Griffiths  V.  Williams  678 

Griffits  V.  Ivory  1587 

i&riffits  V.  Payne  307 

Grill  V.  Gen.  Ins.  Screw  Collier  Co.  400 
Grimani  v.  Draper  216,  347 

^rimman  v.  Legge  862,  863 

(2' 


PAGE 

Grimwood  v.  Bartels  1483 

Grim  wood  r.  Cozens  182 

Grim\vood  v.  JMoss  699 

Grindell  v.  Godmond  211 

Grinnell  r.  Wells  334 

Gripper  r.  Bristow  952 

Grissell  v.  Bristowe  201 

Groenvelt  v.  Burrell  1275 

Grose  v.  West  143 

Grosvenor  v.  Shcrratt  173 

Grounsell  v.  Lamb  293 

Grove  v.  W^are  415 

Groves  v.  Groves  869 

Guardhouse  v.  Blackburn  178,  179 

Gudgen  v.  Besset  967,  1560 

Guest  V.  Elwes  248,  253 

Guest  V.  Warren  1449 

Guidon  v.  Robson  722 

Guier  v.  O' Daniel  228 
Guild's  case  745,  749,  751,  752,  753,  759 

Gull  V.  Lindsay  251,  882 

Gully  V.  Bp.  of  Exeter  397,  688 

Gumm  i\  Tyrie  961 

Gun  V.  McCarthy  Errata 

Gunn  V.  Roberts  227 

Gunter  v.  M'Kear  463 

Gunter  c.  Jd'Tear  463 

Gurford  v.  Bayley  246,  251 

Gurney  r.  Langlands  1590 

Gnrr  r.  Rutton  514 

Gutsole  V.  Mathers  290 

Guy  V.  Sharpe  1015 

Guy  V.  West  144 

Guy  Mannering,  The  220 

Gwillim  V.  Gwillim  906 

G  Wynne  v.  Davy  973 

Gyles  V.  Hill  1318 

H.,  talsely  called. C,  v.  C.  160 

Habergham  r.  Vincent  910 

Haekwood  v.  Lyall  227 

Haddrick  v.  Heslop  42 

Hadley  v.  Carter  520 

Hadley  v.  Green  1454 

Hadley  v.  McDougall  1534 

Hagedorn  v.  Reid  614 

Haogitt  r.  Ineif  1333 

Haiii  V.  Newton  1204 

Haigh  V.  Belcher  1227 

Haigh  V.  Kaye  895 

Haigh  V.  North  Bierley  Union  840 

Hailes  v.  Marks  42,  245 

Haine  v.  Davey  301 

Haines  r.  East  India  Co.  725 

Haines  v.  Guthrie  Errata 

Haines  v.  Roberts  144 

Haire  v.  Wilson  106 

Hale  V.  Russ  1551 

Haldane  v.  Eckford  52) 

Halkett  v.  Emmott  1315,  1406 
■92) 


TABLE  OF  CASES  CITED. 


Iv 


PAGE 

Hall,  Re  911 

Hall's  Estate,  Re  13G5 

Hall  V.  Bainbridge  169 
Hall  r.  Ball                  394,  400,  401,  494 

Hall  V.  Betty  1000 

Hall  V.  Brand  1077 

Hall  V.  Burgess  862 

Hall  V.  Butler  127 

Hall  V.  Byron  147 

Hall  V.  Cazenove  979 
Hall  «.*City  of  London  Brewery  Co.lOOl 
Hall  i'.  Conder     1003,  1004,  1005,  1006 

Hall  V.  Eve  292,  295 

Hall  V.  Featherstone  346 

Hall  V.  Fisher  1041 

Hall  V.  Hall  177 

Hall  V.  Hill          675,  1042,  1043,  1044, 
1045,  1046 

Hall  V.  Janson  991 

Hall  V.  Levy  1450 

Hall  V.  Lund  146 

Hall  V.  Maule  167 

Hall  V.  Mayor  of  Swansea  842 

Hall  V.  Odber  1490 

Hall  V.  Rouse  463 

Hall  V.  Vaughan  295 

Hall  V.  Warren  216 

Hall,  ex  p.,  re  Whitting  889 

Hallack  r.  U.  of  Cambridge  167 

Hallen  r.  Runder  839 

Haller  ii.  Worman  679 

Hallet  v.  Hears  1059 

Hallett  r.  Cousens  1198 

Halley,  The  226 

Halliday  v.  Holgate          •  1010 

Halliday  v.  Martinett  013 

Hallifax  v.  Lyle  115,  730 

Hallmark's  case  704 

Haly  V.  Lane  729 

Hamber  v.  Roberts  1578 

Hambrook  v.  Smith    ,  1243,  1537 

Hamelin  i\  Bruck  1551 

Hamerton  i\  Hamerton  674 
Hamerton  v.  Stead              859,  860,  862 

Hamilton  r.  Chaine  172 

Hamilton  tJ.'Nott  793 

Hamilton  ik  Terry  925 

Hamlyn  *'.  Betteley  33,  172 
Hammersley  v.  Baron  de  Biel  720,  879, 

885,  886 

Hammick  r.Bronson  515 

Hammond,  Re  907 

Hammond  v.  Bradstreet  550 

Hammond  i\  Rogers  226 

Hammond  v.  Smith  923 

Hammond  v.  Stewart  1053 

Hammond's  case  1584,  1590 

Hampden  v.  Walsh  817 

Hampshire  v.  Pierce  1032 


PAGE 

Hampton  v.  Spencer 

647 

Hanbury  v.  Ella 

246 

Hancock  v.  Guerin 

1532 

Hancock  v.  Somes 

1387 

Hancock  v.  Welsh 

1441, 

1449 

Hand  v.  Hall 

852 

Hand  ley  v.  Jones 

512 

Handley  v.  Ward 

1224 

Hanmer  ik  Chance 

151,  938 

Hanna,  The 

226 

Hannaford  v.  Hunn 

1428, 

1431 

Hannaford  v.  Whiteway 

199 

Hannay  v.  Stewart 

533 

Hansard  v.  Robinson 

403 

Hansom  v.  Armitage 

896 

Hanson  v.  Parker 

665 

Hanson  v.  Shackelton 

21 

Hanson  v.  Stetson 

980 

Harbord  v.  Monk 

472,  473 

Harden  v.  Gordon 

736 

Harding  r.  Greening 

136 

Harding  v.  Jones 

690 

Harding  i\  King 

1387 

Harding  v.  Williams 

1380 

Hardman  v.  Willcock 

727 

Hard  wick  t\  Hard  wick 

1037 

Hardwick,  The 

635 

Hardy  v.  Alexander 

337 

Hardy's  case 

527,  809 

Hardy,  Re 

181 

,  968 

Hare  v.  Copland 

92 

Hare  t\  Henty 

45 

Hare  v.  Hyde 

1132 

Hargest  t\  Fothergill 

411 

Hargrave  v.  Hargrave 

129,  535, 

571, 
677 

Hargreavev.  Everard 

173 

Hargrea\es  v.  Parsons 

884 

Harker,  Re 

920 

Harland  v.  IVIorley 

174 

Harlock  v.  Ashberry 

96 

Harman  r.  Anderson 

727 

Harman  v.  Gurner 

1027 

Harman  v.  Reeve 

895 

Harmer  v.  Bean 

385 

Harmer  v.  Bell 

1430, 

1450 

Harmer  v.  Cornelius 

1008 

Harmer  v.  Davis 

693 

,  723 

Harmony,  The 

228 

Harnett  ii  Vise 

5() 

Harnor  v.  Groves 

980 

Harratt  v.  Wise 

54, 

1421 

Harrington  v.  Fry 

1577, 

1581 

Harris,  Re  916,  917,  918,  919 

Harris  in  re,  Cheese  v.  Lovejoy  916,  918 

Harris  v.  Berrall  916 

Harris  v.  Costar  206 

Harris  v.  Gamble  291,  292 

Harris  i;.  Goodwyn  109,  972 
93) 


Ivi 


TABLE  OF  CASES  CITED. 


PAGE 

Harris  r.  Harris  742,  Ifjii? 

Harris  r.  Hill  419,  420,  791 

Harris  v.  Mantle  289 

Harris  v.  O'Lojililon  23 

Harris?;,  repperell  971 

Harris  r.  Petherick  57 

Harris  v.  Kickett  707 

Harris  v.  Ry fling  144 

Harris  v.  Saunders  1474,  148(j 

Harris  r.  Tenpany  1552 

Harris  r.  Thompson  140 

Harris  v.  Tippett  1228,  12.32 

Harris  r.  Wilson  063 

Harrison's  case  354 

Harrison  r.  Barton  175,  1019 
Harrison  v.  Blades            431,  432,  1567 
Harrison  v.  Corp.  of  Southampton  190, 
3SG,  1430,  1464 

Harrison  v.  Creswick  110 

Harrison  v.  Elvin  909 

Harrison  r.  Fane  60 

Harrison  r.  Gurdon  1232 

Harrison  v.  Heathorn  722 

Harrison  v.  Hyde  1037 

Harrison  v.  Jackson  976 

Han-ison  v.  Luke  293 

Harrison  v.  Rowan  1225 

Harrison  v.  Rowley  183 

Harrison  v.  Southcote  1244 

Harrison  v.  Taylor  58 

Harrison  v.  Turner  644 

Harrison  r.  Vallance  655,  684 

Harrison  v.  Williams  1285 

Harrison  v.  Wright  719,  726 

Harrison,  ex  parte  1495 

Harrod  v.  Harrod  190.  1170 

Harry  v.  Broad  21 

Hart  V.  Alexander  1421 

Hart  r.  Bush  899 

Hart  V.  Deamer  1429 
Hart  V.   Frontino,  etc.,  Gold  Min.  Co. 


Hart  V.  Hart 

168,  397,  401 

Hart  V.  Horn 

666 

Hart  V.  Nash 

929 

Hart^j.  Newman 

697 

Hart  V.  Prendergast  922,  923,  925,  926 

Hart  V.  Sat  tley  899 

Hartr.  Williams  613 

Hart  V.  Windsor-  294,  1001,  1002 

Harter  v.  Harter  179 

Hartford  v.  Palmer  1169 

Hartford  v.  Power  828 

Hartley  v.  Cook  151 1 

Hartley  v.  Hindmarsh  1462 

Hartley  v.  Wharton  878,  924 

Hartley  r.  Wilkinson  977 

Harton,  The  225 

Hartopp  V.  Hartopp  173 

(27! 


PAGE 

Hartshorne  v.  Watson  1183 

Harty  r.  Davis  93ii 

Harvey  v.  Clayton  78:5 
Harvey  v.  Croydon  Union,  &c.          679 

Harvey  v.  Divers  1058 

Harvey  r.  Farnie  1476 

Harvey  v.  Grabham  976 

Harvey  r.  Harvey  Errata 
Harvey  v.  Mitchell                36,  363,  406 

Harvey  v.  Morgan  _       410 
Harvey  v.  Man.   Perm.    Invest.  Build. 

Soc.  Errata 

Harvey  v.  Towers  3Ki 

Harvey's  case  777 

Harwood  v.  Goodright  40 

Harwood  v.  Keys  665,  6feS 

Harwood  r.  Sims  547,  557 

Hasleham  v.  Young  205 

Haslock  r.  Furgusson  934 

Hasluck  r.  Pedley  177 

Hassall  v.  Cole  2 14 
Hassard  v.  Smith              216,  347,  1429 

Hastie  v.  Hastie  159rj 

Hastilow  V.  Stubie  178 
Hastings  Peer.                      573,  575,  .578 

Haswell,  The  234 

Hatch  V.  Dennis  684 

Hatch  V.  Hatch  1557 

Hatch  r.  Searles  1561 
Hathaway  r.  Barrow    1429,  1437,  1445 

Hathaway  r.  Haskell  661 

Hathorn  v.  King  1209 
Hatton  V.  Royle 
Havelock  v.  Rockwood 

Hawarden  r. 'Dunlop  '        1352 

Hawes  v.  Armstrong  872 

Hawes  r.  Draeger  130 

Hawes  v.  Forster  .  389,  391 

Hawes  v.  Watson  727 

Hawk  V.  Freund  639 

Hawkes  v.  Baker.  1181 

Hawkes  v.  Kennebec  26 

Hawkes  v.  Salter  44 

Hawkesley  v   Bradshaw  716,  717 

Hawkesworth  r.  Showier  1160 

Hawkins  i-.  Carr  481 

Hawkins  v.  (Jathercole  796 

Hawkins  v.  Howard  791 

Hawkins  i\  Luscorabe  665 

Hawkins  r.  Warre  375,  378 

Hayden  v.  Madison  701 

Haydon  v.  Williams  922,  926 

Hayes,  Re  911 

Hayes  v.  Dexter  188,  189 

Hayes  v.  Seaver-  681 

Haylock  v.  Sparke  646,  1502 

Hayne  v.  Maltby  117,  118 

Haynes  v.  Birks  44 

Haynes  v.  Haynes  129 
94) 


205 
1475 


TABLE  OF  CASES  CITED. 


Vll 


PAGE 

Hayncs  )'.  Hayton 

640 

Haynes  r.  Hill 

911 

Hayseldeu  v.  Staff 

293 

,  294 

Havslep  r.  Gvmer 

707 

Hayter  r.  Tucker 

891 

Hay  ward  v.  Hay  ward 

1091 

Hayward  r.  Stephens 

1332 

Hazeldine  v.  Grove   43,  4-^ 

,  54,  94 

,  300 

Head  v.  Daldry 

167 

Headlam  r.  Hedley 

143 

Heald  v.  Kenworthy 

205 

Healey  v.  Thatcher 

688 

Healey  v.  Young 

464 

Healy  r.  Heaiy 

1033 

Healy  v.  Thorne 

154 

Heane  v.  Ivogers 

707,  709,  723 

Heap  r.  Harris 

23* 

",  290 

Heard  r.  Pilley 

947 

Hearn,  Re' 

9U6 

Hearn  v.  Tomliu 

295 

Hearne  v.  Stowell 

66 

Heath's  case 

510 

Heath  c.  Brewer 

300 

Heath  v.  Crealock 

806 

Heathcothe's  divorce 

20, 

1510 

Heathcote,  in  goods  of 

911 

Hcawood  V.  Bone 

939 

Hebblethwaite  v.  Hebblethvvaite 

1151 

Hedges  v.  Tagg 

334 

Hedley  v.  Bainbridge 

204 

Heenan  v.  Clements 

685 

Heflield  v.  Meadows 

1019 

Heiron's  case 

1091 

Hell  in  gs,  He 

906 

Helmsley  v.  Loader 

265 

Helps  V.  Clayton 

61 

Helsham  r.  Blackwood 

1445 

Helyear  /•.  Hawke 

534 

Hemming  r.  Blanton 

96 

Hemming  v.  ISIaddick 

1235 

Hemming  ;•.  Parry 

234 

,  245 

Hemmings  v.  Gasson 

322 

Hemphill  v.  M'Kenna 

1437 

Hempston  r.  Humphreys 

1080 

Henderson  v.    Australian 

Eoyal 

Mail 

Steam  Navig.  Co.  841,  844 

Hender.son  v.  Barnewell  389 

Henderson  v.  Broomhead  1126 

Henderson  v.  Henderson       1454,  1474, 
1478,  1486,  1487  1489 


Henderson  v.  Ripley 
Henderson  r.  Squire 
Henfree  v.  Bromley 
Henfrey  v.  Henfrey 
Henkin  v.  Gerss 
Henley  v.  Soper 
Henman  v.  Dickinson 
Henman  r.  Lester 
Henry  v.  Goldney 


Errata 

10U3 

1556 

914 

817 

1486 

1164,  1546 

383,  1251 

1444 


PAGE 

Henry  v.  Lee  1202 

Henry  v.  Leigh  406,  1354 

Henry  v.  Risk  991 

Henry  v.  Marq.  of  Westmeath  374 

Henry  Coxon,  The  614,  1512 

Henshaw  v.  Pleasance  14:X) 

Hen  wood  v.  Oliver  59 

Hejiworth  r.  Hepworth  8G9 

Herbert  v.  Ashburner  1281 

Herbert  v  Herbert  911 

Herbert  v.  Rae  168 

Herbert  v.  Sayer  866 

Herbert  v.  Tuckal  566,  572 

Hereford,  Bp.  of,  v.  T— n  100 

Hermann  v.  Seneschal  300 

Herries  Peer.  229 
Herring  r.  Clobery              783,  785,  793* 

Herschl'ekl  v.  Clarke  485 

Hervey  t).  Hervey  515,  578 

Heseltine  t\  Siggers  892 

Heslop  r.  Chapman  42 

Heston  v.  St.  Bride  1473 

Hetherington  c.  Kemp  202 

Hctherington  i'.  Longrigg  714 

Heugh  r.  Garrett  1524 

Hewitt  V.  Piggott  651,  703 

Hewlett  V.  Cock  582,  586 

Hewlins  v.  Shippam  835 

Hewson  v.  Brown  1312 

Hext  V.  Gill  145 

Hey  V.  Moorhouse  377 

Heyes  v.  Hindle  813 

Heyman  v.  Flewker  147 

Heyman  r.  Neale  389 

Heymann  r.  R.  1U9 

Heysham  v.  Forster  1345 

Heywood  v.  Pickering  46 

Heyworth  v.  Knight  390 

Hibberd  v.  Knight  420,  791 

Hibbert  v.  Barton  952,  953 
Hibblewhite  v.  M'Morine        890,  892, 
15.58,  1562 

Hibbs  V.  Ro.ss  227,  1512 

Hickley,  In  re  198 

Hickey  v.  Burt  654 

Hickey  v.  Campion  828,  1149 

Hickey  v.  Hayter  737 

Hickman  r.  Haynes  975 

Hickman  v.  Machin  125,  294 

Hickman  v.  Upsall  219 

Hicks,  Re  913 

Hicks  V.  D.  of  Beaufort  698 

Hicks  V.  Faulkner  41 

Hicks  r.  Sallitt  962,  1023 

Hickton  v.  Autrobus  199 

Hide,  Re  865 

Hide  ('.  Thornborough  145 

Higgins  V.  Hopkins  722 

Higgins  V.  Scott  102 


(2795) 


Iviii 


TABLE  OF  CASES  CITED. 


PAGE 

Higijins  r.  Senior  982,  !J8:J 

Higgins'  Trusts,  Re  711 

Higginson  v.  Clowes  97:3 

Higginson  v.  Hall  15136 

Higginson  v.  Simpson  817 

Higgs  V.  Dixon  1564 

Higgs  V.  Mavnard  207 

Highani  v.  Ridgway  588,  589,  592, 

593,  594,  597 
Highfield  v.  Peake  1238,  1311,  1340 
Highland  Turnp.  Co.  v.  McKeau  1514 
Hilliard  v.  Phaley  664 

Hill  Ke  907,  911 

Hill  v.  Campbell  484,  1524 

Hill  v.  Coombe  1224 

Hill  V.  Dolt  1051 

•Hillr.  Hart-Davis  1189 

Hill  V.  Hennigan  164 

Hill  r.  Manchester  Waterw.  Co.      116, 

118,  119 
Hill  v.  Packard  1318 

Hill  V.  Philp  1522,  1529 

Hill  V.  Potts  183 

Hill  V.  Ratley  183 

Hill  V.  Salt  248,  252 

Hill  v.  Thompson  61 

Hillary  v.  Waller  157 

Hills  I)   Evans  61,62 

Hills  r.  Laming  119 

Hills  V.  London  Gas  Co.  62 

Hills  V.  Wates  481 

Hillyard  v.  Grantham  1445 

Hilton  V.  Fairclough  44 

Hilton  V.  Geraud  890 

Hindekoper  v.  Cotton  812 

Hindlcy  v.  Haslam  1448 

Hindmarsh,  Re  923 

Hindmarsh  v.  Charlton  902,  909 

Hindos.  China  &  Japan,  Bk.  of,  v.  Smith 

1554 
Hindson  v.  Kersey  1573 

Hindustan,  Bk.  oi",  Re  1091 

Hinton  v.  Heather  42 

Hirschfield  v.  Smith  44 

Hirst  D.  Hannah  951 

Hitch  V.  Wells  905 

Hitchin  v.  Campbell   1448,  1450,  1453, 

1471 
Hitchin  v.  Groom  1037 

Hitchings  v.  Thompson  127 

Hitchins  v.  Eardley  36,  5(jl 

Hitchins  v.  Hitchins  '  466 

Hoad  V.  Grace  1019 

Hoar  V.  Mill  266 

Hoare  v.  Coryton  186,  668 

Hoare  v.  Graham  980 

Hoare  v.  Johnstone  663 

Hobbs  V.  Henning  1482 

Hobbs  V.  Knight  917,  918,  919 

{21 


PAGE 

Hobhouse  v.  Hamilton  1410 

Hol)son  r.  Parker  1283 

Hobson  V.  Thellu.sson  837 

Hoby  V.  Roebuck  889 
Hockin  r.  Cooke                            22,  991 

Hodenpyl  v.  Vingerhoed  531 

Hodgens  v.  Graham  926 

Hodges  V.  Ancrum  1224 

Hodges  V.  Bennett  827 

Hodges  V.  Cobb  466 

Hodges  V.  Holder  358 

Hodgkinson  v.  Fletcher  150 

Hodgkinson  v.  Kelly  201 

Hodgson  V.  Clarke  1033 

Hodgson  V.  Davies  992 
Hodgson  V.  De  Beauchesne  228, 229, 520 
Hodgson  I'.  Hutchenson             721,  886 

Hodgson  V.  Johnson  889 

Hodgson  V.  Le  Bret  897 

Hodgson  i\  INIerest  665 

Hodgson  V.  Scarlett  140 

Hodgson's  case  325 

Hodnett  v.  Forman  1571 

Hodsoll  V.  Taylor  482 
Hodson  V.  Mid.  Gt.  W.  Ry.  Co.  1593 
Hoe  V.  Nathrop                        1353,  1364 

Hoe  V.  Nelthorpe  1353 

Hoffman  v.  Smith  788 

Hogarth  v.  Latham  1561 

Hogg  V.  Garrett  535 

Hogg  V.  Skeen  346 
Hoghton  V  Hoghton           173,  678,  688 

Holbard  v.  Stephens  375 

Holbeck  v.  Holbeck  907 

Holbrook  v.  Tirrell  861 

Holcombe  v.  Hewson  306 

Holcroft  v.  Barber  196 

Holcroft,  Lady,  t;.  Smith  1572 

Holcroft's  case  1460 

Holden,  Re  1105 

Holden  v,  Ballantyne  253 

Holden  v.  Holden  1051 

Holden  v.  King  1387 

Holder  v.  Coates  144 

Holder  v.  Soulby  206 

Holdfast  V.  Dowsing  1573 
Holding  V.  Elliott                       696,  982 

Holding  V.  Pigott  lOlO 

Holdsworth  v.  Davenport  891 

Hoi  ford  V.  Bailey  141 

Holgate,  Re  905 

Holgate  V.  Slight  951 

Holiday  v.  Pitt  1127 

Holl  V.  Griffin  727 
Holland  v.  Reeves                     651,  1206 

HoUiday  i\  Atkinson  168 
Hollingham  v.  Head                  306,  319 

Hollins  V.  Verney,'  97 

Hollis  V.  Goldfinch  311 
96) 


TABLE  OF  CASES  CITED. 


lix 


PAGE 

Hollman  v.  Pullin  Errata 
Holloway  v.  Rakes  602 
Holman  v.  Burrow  21,  24 
Holme  V.  Brunskill  699 
Plolmes  V.  Baddeley  795 
Holmes  v.  Beliingham  143 
Holmes  v.  Clifton  732 
Holmes  v.  Hoskins  896,  897 
Holmes  r.  INIackrell  •  879,  924 
Holmes  v.  IMilward  169 
Ht)lmes  V.  INIitchell  873,  881 
Holmes  v.  Remsen  1445 
Holmes  v.  Staines  698 
Holt  V.  Jesse  6R0 
Holt  V.  Miers  411,  1335 
Holt  V.  Squire  677 
Homan  v.  Thompson  359 
Home  V.  Bentinck  811,  815 
Homer  r.  Homer  1040 
Homer  i-.  Wall  is  1584 
Homersliam  v.  Wolverhampton  Water- 
works Co.  841,  845 
Honiballt'.  Bloomer  1392 
Hood  V.  Ld.  Barrington  875.  1352 


569,  573 

668 

792 

929 

125 

413 

419,  420 

218 

300 

lOOi) 

532,  930 

45 

255 

1043 

1130 

54,  301 

484 

1201 

Home  V.  Smith  1058,  1079 

Horner  v.  Horner  1040 

Hornsby  v.  Robson  199 

Horrocksf.  Metrop.  Ry.  Co.  1429 

Horsefall  v.  Hodges  877 

Horsey  v.  Graham  889 

Horsfall  v.  Hey  895 

Horsford,  Re  918,  920 

Horton  r.  M'Murtry  264 

Horton   v.  Westminster   Improvement 
Comrs.  116,  117,  119 

Horwood  V.  Griffith  1016,  1023 

Hot.son  V.  Browne  968 

Hough  V.  IManzanos  982 

Houghton,  ex  i)arte  8(is 

Houghton  V.  Koinig  393 

Houlden  v.  Smith  1425 


Hood  V.  Lady  Beauchamp 
Hood  V.  Reeve 
Hooper  v.  Gumm 
Hooper  v.  Stephens 
Hopcraft  v.  Keys 
Hope  V.  Beadon 
Hope  r\  Liddell 
Hopewell  v.  De  Pinna 
Hopkins  v.  Crowe 
Hopkins  v,  Grazebropk 
Hopkins  v.  Logan 
Hopkins  v.  Ware 
Hopper  IK  Warburton 
Hopwood  i\  Hopwood 
Horn  V.  Swinford 
Horn  V.  Thornborough 
Home  V.  Hough 
Home  V.  Mackenzie 


Houlditch  V.  M.  of  Donegal  1474,  1477, 

1480,  14K7,  14S9,  1490 

Houliston  V.  Smyth  187,  518,  1336 

Household  Fire,  &c.,  Ins.  Co.  v.  Grant 

197 

Houseman  v.  Roberts  408 
How  V.  Hall                         379,  415,  417 

Howard  v.  Canfield  1204 

Howard  v.  Ducane  5 

Howard  i'.  Hudson  719,  731 

Howard  v.  Maitland  1001 

Howard  v  Mitchell  115 

Howard  v.  Newton  315 

Howard  v.  Peete  263 

Howard  v.  Shaw  295 

Howard  v.  She  ward  306,  534 

Howard  v.  Smith  38-1 

Howard  v.  Williams  411 

Howard  v.  Wright  971 

Howcutt  V.  Bonser  937 

Howe  V.  Hall  895 

Howe  V.  Palmer  896 

Howe  V.  Scarrott        '  125 

Howell,  Re                    •  906 

Howell  V.  Lock  1183 

Howes  V.  Barber  1058 

Howlett  V.  Tarte  1450 

Hoyle  V.  Ld.  Cornwallis  21 

Hul)bard  v.  Alexander  1042 

Hubbard  v.  Johnstone  40 

Hubbard  v.  Lees  572,  900 

Hubbart  v.  Phillips  1440 

Huber  v.  Steiner  69 

Hubert  v.  Moreau  879 

Hubert  v.  Treherne  879  ■ 

Hubly  V.  Vanhorne  1590 

Huckman  v.  Firnie  342,  362 

Huckvale,  Re  906 

Hudson  V.  Gnestier  1482 
Hudson  V.  Parker              902,  903,  904 

Hudson  V.  Revett  1560,   1562 

Hudson  r.  Tabor  542 

Huet  V.  Mesurier  1356 

Huffell  V.  Armitstead  48 

Huggins  V.  Ward  352,  1305 

Hughes  V.  Biddulph  795 

Hughes  r.  Blake  1472 

Hughes  r.  Buckland  43,  54,  301 

Hughes  t;.  Budd  408,  411 

Hughes  V.  Metrop.  Ry.  Co.  72(5 

Hughes  V.  Morris  850 

Hughes  V.  Paramore  922,  929 

Hughes  V.  Rodgers  1587 

Hughes'  case  367 

Hughes'  Patent,  re  160 

Huguenin  r.  Baseley  172 

Huh  V.  Blake  1445,  1470 
Hull,  Mayor  of,  v.  Horner        152,   153 

Humble  v.  Hunt  1358 


(2797) 


Ix 


TABLE  OF  CASES  CITED. 


PAGK 

Humble  r.  Hunter  US.J 

}lunil)le  r.  Mitchell  890,  892 

Hume  c.   liurton  1429 

Hume  i:  Scott  12:)9 

Huml'rey  i:  Dale  99.") 

Hummings  r.  Williams  48G 

Humphrey  v.  St.  Leger  411 

Huinpluoys  v.  Budd  24 

Humphreys  r.  Green  894 

Humi)hrey,s  r.  Jones  923 

Humphries  r.  Brogden  144,  145 

Humphrys,  ex  parte  1274 


Hungate  v.  Gascoyne        572,  573,  574 

Hungerford  r.  Beecher  119 

Hunuings  /■.  Williamson  1363,  1532 
Hunt  r.  Adams           871,  9G5,  980,  982 

1551 

Hunt  r.  Anderson  1540 

Hunt  V.  Good  lake  66 

Hunt  V.  Hecht  899.  903 

Hunt  V.  Hewitt  1526,  'l527 

Hunt  V.  Hort           ,  984 

Hunt  V.  Hunt  908 

Hunt  V.  Livermore  978 

Huuty.  ]\lassey  186 

Hunt  V.  Peake  145 

Hunt  V.  Rousmanier  97(» 

Huntji.  Tulk  1039 
Hunt  V.  Wimbledon  Local  Board     848 

Hunt  r.  Wise  642 

Hunter,  The  130,  137 

Hunter  w.   Atkins  173 

Hunter  v.  Caldwell  54 

Hunter  v.  Emmanuel  248 

Hunter  v.  Leathley  419 

Hunter  v.  Neck  25 

Hunter  v.  Parker  845,  850 

Hunter  v.  Stewart  1447,   1453 

Hunter  (%  Walters  724 

Huntingdon  Peer.  573,  578 

Huntingi'ord  r.  Massey  321 

Huntly  V.  Donovan  1355 

Huntley  Peer.  573 

Hurd  r.  Moring  805 

Hurpurshad  v.  Sheo  Dyal  1173 

Hurst  V.  Beach  1042,  104.; 

Hurst's  case  1127 

Hussey  I'.  Crickett  817 

Hussey  v.  Horne-Payne  876 

Hussey  v.  Payne  876 

Hutcheon  v.  Manningtou  11 

Hutchinsr.  Denziloe  829 
Hutchins  v.  Scott          1037,  1552,  1557 

Hutchinson  v.  Bernard  493 

Hutchinson  v.  Glover  1530,  1534 

Hutchinson  v.  Tatham  995 

Hutchison  v.  Bowker  62 

Huthwaite  v.  Phaire  1465 

Hutt,  ex  parte  1283,  1289 

(27 


Hutt  V.  Morrell 
Huttim,  Ive 
Hutton  r.  Bright 
Hutton  r.  Kossiter 
Hutton  V.  Uplill 
Hutton  V.  Ward 


PAGE 

711 
220 
722 
721,  737 
722 
416 


Hunton  v.  Warren  215,  995,  996,  1010, 

1012 

Hux,  re  1572 

Huxham  v.  Smith  1445 

Hyckman  v.  Shotbolt  725 

Hyde  v.  Johnson  94() 

Hyde  v.  Palmer  524 

Hyde  v.  Watts  699 

Hyman  v.  Nye  999 

Hynde's  case  1472 

InnoTT  r.  Bell  920 

llliugworth  r.   Leigh  684 

Ilott  V.  Genge  904 

Imlay  v.  Kogers  812 

Immolata  Concezione  240 
Imperial   Bank  v.  Lond.   &  St.   Cath. 

Deick  Co.  6,    995 

Imperial  Gas  Co.  v.  Clarke  1284 
Imper.  Land  Co.  of  Marseilles         464 

Imrie  v.  Castrique  1430 

Inca,   The  226 

Inch  don  v.  Berry  1422 

Indian  Zoedone  Co.,  in  re  1322 

Ingalls  V.  Bills  999 

Ingilby  v.  Shafto  1524 

Inglesant  v.  Inglesant  904 

Inglis  r.  Battery  964 

Inglis  r.  Gr.  North  Eail.  Co.  1515 
Inglis  r.  Spence                           693,  695 

Ingraham  v.  Bockins  617 

Ingram  v.  Lea  379 

Ingram  v.  Little   ■  475 

Ingram  v.  Wyatt  178 

Inman  v.  Foster  337 

Inman  v-  Jenkins  485 

Inman  i\  Stamp  889 

Innell  r.  Newman  654 

Innis  V.  Campbell  218 

lona,  The  226 

Ipswich  case  GU(i 
Ipswich   Dock  Commiss.  v.   St.   Peter, 

Ipswich  142 
Ireland  ■(•.  Powell  542,  54(> 
Irish  Society  v.  Bp.  of  Derry  1429,  1592 

Irons  V.  Smallpiece  8;>7 

Irving  V.  Greenwood  336 

Irving  V.  Veitch  931 

Irwin  r.  Callwell  1499 

Isaac  V.  Farrer  290 

Isaac  V.  Gompertz  567 

Isaacs  V.  Hardy    .  Errata 

Isabella,  The  981 

Isquierdo  v.  Forbes  1489 
98) 


TABLE  OF  CASES  CITED. 


Ixi 


Israel  r.  Argent 

187 

Israel  c.  Clark 

734 

Ivat  V.  I'inch 

G85 

Ivey  V.  Young 

251 

Ivy,  Lady,  and  Neal's  case 

1518 

.Tacic  r.   Kicrnau         1:313, 

1317, 

1351 

Jackson,   Re 

892 

Jac'lvson  V.  Adams 

322 

Jackson  r.  Allaway 

203 

Jackson  r.  Allen 

154B 

Jackson  r.  Bailey 

492 

Jackson  v.  Bard 

600 

,  6S3 

Jackson  v.  Blanshan 

111 

,  580 

Jackson  v.  Browner 

560 

Jackson  v.  Biirnhain 

806 

Jackson  v.  Carrington 

246 

Jackson  v.  Christman 

1204 

Jackson  v.  Cooley 

572 

Jackson  v.  French 

791 

,  792 

Jackson  r.  Frier 

402 

Jackson  r.  Gridley 

1171 

Jackson  i:  Hesketh 

358 

Jacks  )n  v.  Hill 

732,   En-afa 

Jackson  i:  Irvin 

215 

Jackson  v.  Jackson 

1184, 

1498 

Jackson  v.  Kniffen 

627 

,  632 

Jackson  r   Lamb 

586 

Jackson  r.  Lowe 

876 

Jackson  .-.   Luquere 

586 

Jackson  i:  M'Call 

155 

Jackson  v.  IVIalin 

1556 

Jackson  r.  Marsh 

1038 

Jacks:)n  r.  JNIatsdorf 

116 

Jacks  )n  i:  Miller 

1517 

Jackson  v.  Oglander 

876 

Jackson  r.  Pesked 

109 

Jackson  r.  Reagar 

1053, 

1081 

Jackson  v.  ThoTiiason 

1218 

Jackson  v.  Waldron 

1579 

Jackson  v.  Williamson 

813 

Jackson  r.  Winchester 

426 

Jackson  v.  Wood 

1424 

Jaclcson  v.  Woolley 

658 

Jackson  v.  Wright 

116 

Jacob  V.  Hart 

1551 

Jacob  V.  H ungate           345, 

105.4, 

1080 

.lacob  V.  Dee 

409 

Jacob  V.  Lindsay   38.">,  652, 

1202, 

1203 

Jacobs,  Re 

1081 

Jacobs  V.  Humphrey 

666 

Jacobs  V.  Jacobs 

1132 

Jacobs  V.  Layborn 

1184, 

1185 

Jacobs  ('.  Seward 

250 

Jacobs  i\  Tarleton 

361 

J  aggers  ti  Binnings 

660 

Jakeman  v.  Cook 

1492 

James,  The 

1453 

James  v.  Biou 

696 

,  697 

James  v.  Cohea 

921 

PAOE 

James  r.  Hatfiekl  .  (>55 

James  r.  Palter  ^  95 

James  v.  Williams  872 

Jameson  r.  Drinkald  1213 

Jameson  r.  Leitch  1335,  1445 

Jameson  v.  Stein  885 

Jameson  v.  Swinton  46 

Janaway,  Re  905 

J'Anson  ii.  Stnart  329 

Jardine  v.  Sheridan  678,   688 

Jarmain  v.  Hooper  213 

]  Jarrett  r.  Leonard  667 

i  Jayne  v.  Price  148 

Jeakes  v.  White  889 

I  Jeans  c.  Cooke  869 

I  Jeans  v.  Whcedon  385,  494 

Jeffcott  r.  North  Brit.  Oil  Co.  875 

I  Jeilerson  Ins.  Co.  v.  Cotheal  1212 

Jetrery  v.  Walton  966 

.Jefterys  v.  Boosey  94!) 

Jeffries  v.  Great  Western  Rail.  Co.   149 
Jeffries  v.  Williams  145 

Jenkins  ?'.  Betham  1008 

Jenkins  r.  Blizard  1421 

Jenkins  v.  Bushby   783,  792,  793,  1524 


Jenkins  v.  Davis 
Jenkins  i\  Gaisford 
Jenkins  v.  Harvey 
Jenkins  v.  Heycock 
Jenkins  v.  Morris 
Jenkins  v.  Phillips 
Jenkins  v.  Reynolds 
Jenner  v.  Ffinch 
Jenner  v.  Joliffe 
Jenner  v.  Morris 
Jennings,  Re 
Jennings  v.  Johnson 
Jennings  v.  Whittaker 
Jessel  r.  Bath 
Jesns  Coll.  i\  Gibbs 
Jetley  v.  Hill 
Jewell  V.  Christie 
Jewell  V.  Jewell 
Jewett  V.  Torry 
Jewis  r.  Lawrence 
Jewison  r.  Dvson 
Jewitt,  Re 
Jewitt  V.  Eckhardt 
Jewsbury  v.  Newbold 
Jeyes  v.  Booth 
Jinks  V.  Edwards 
Joel  V.  Dicker 
John  V.  Bacon 
.John  &  Mavy,  The 
Johns  r.  James 
Johnson  r.  Appleby 
Johnson  v.  Baker 
Johnson  v.  Ball 
Johnson  v.  Barnes 


110, 


714 
910 

1025 
998 
204 
244,  253 
871 
915 
384 
212 

1515 
940 
707 
962 
418 
Errata 
110 
560 
7:^7 
183 
309 

1130 
849 
211 
951 

1001 

951,  952 

999 

1450 
447 
964 

1559 
911 
152 


(2799) 


Ixii 


TABLE  OF  CASES  CITED. 


PAGE 

Johnson  r.  Blane  '2\(i 

Johnson,  Ex  jiartc,  Re  Cliapman  1190 
Johnson  r.  Credit  Lyonnais  Co.  147 
Johnson  v.  Davt'ine  80."),  1581 

Johnson  v.  Dodgson  878,  879,  SDO 

Jolinson  r.  Durant  808,  1496 

Johnson  v.  Hocker  1517 

Johnson  v.  Hoklsworth  654 

Jolinson  r.  Kershaw  42:2 

Johnson  r.  Lawson  560,  56;> 

Johnson  r.  Lyford  181.  494,  968 

Johnson  r.  Manning  212 

Johnson  v.  Dk.  of  Marlborough  1547 
Johnson  v.  Mason  156G 

.Johnson  v.  Kaylton  1006 

Johnson  v.  Reid  167 

Johns  in  v.  St.  Peter,  Hereford  215 
Johnson  i:  Stear  1009 

Johnson  r.  Ward  670,  1359 

.Johnson  r.  Warwick  118 

Johnston  v.  Caulkins  3:)6 

Johnston  v.  Clinton  126.3 

.Johnston  v.  Summer  211,  212 

Johnston  v.  Usborne     '  990,  1013 

Johnstone  i\  Hudlestone  21,  862 

Johnstone  v.  Sutton  141 

Joint  r.  INIortj'n  872 

Jollcy  r.  Taylor  379,  416 

Jolly  t'.  Rees  211 

Jolly  V.  Young  988 

Joly  V.  Swift  14.38,  1470 

.Joiies,  Re  128,  904,  907,  908 

Jones  &  Beaver's  case  1457 

Jones  c.  Boland  58 

Jones  V.  Brewer  431,  1567 

Jones  V-  Carrington  684 

.Jones  V.  Cowley  234 

Jones  V.  Culling  Errata 

•  Jones  r.  Cwmorthen  Slate  Co.  64 

Jones  f.  Edwards  410 

Flint  892,  893 


Jones  r.  Newman 
.Jones  V.  Ogle 
.Jones  V.  Peppercorne 
.Jones  r.  Perry 
.Jones  r.  Puiih 


Jones  t\ 
Jones  V. 
Jones  V. 
Jones  V. 


Fort  36 

Foxall  688 

Frost  119 

Jones  V.  Gales'  Exors.  19 
Jones  V.  Galway  Town  Commiss.     170 

Jones  V.  Gooday  300 

Jones  V.  Goodrich  800,  1352 

Jones  V.  Harris  957 

Jones  r.  Howell  375 

Jones  V.  Hutchinson  247,  253 
Jones  V.  Jones       432,  1559,  1575,  1578 


Jones  V.  Just 

Jones  V.  Littledale 

Jones  V.  Marshall 

Jones  V.  Mills 

Jones  V.  Monte  Video  Gas  Co. 

Jones  V.  IMorgan 

Jones  V.  JMorrell 


100.- 

982 

1132 

48 

1538 

266 

706 


PAGE 

1028 

177 

6 

514 

785 


Jones  V.  Randall            1335,  133!),  1417 

Jones  r.  Ryder  532,  930 

Jones  r.  Stevens  333,  337 

Jones  V.  Stroud  1201 

Jones  V.  Tarleton  405 

Jones  r.  Tuberville  663 

Jones  i\  Turnour  729 
Jones  r.  Victoria  Graving  Dock  Co. 

876,  878 

.Jones  i\  Waller  217,  583 

.Jones  r.  AVhite  1429,  1445 

Jones  V.  Williams  309,  310 

Jopi)  r.  Wood  228 

Jonlaine  r.  Lashbrooke  1142 

■Jordan  ?'.  Lewis  794,  1276 
.Jordcn  r.  Money                720,  721,  824 

Jory  r.  Orchard  414 

Josling  V.  ICingsford  1004 

Jourdain  r.  Palmer  484 

.Journu  V.  Bourdieu  988 

Joy  V.  Hadley  1539 

.Judd  V.  Green  174 

Judge  V.  Berkeley  324 

.Judge  V.  Selmes  300 
.Juggoraohun  Ghosei-.^Ianickhnnd  1011 
Justice  r.  Elstob               381,  409,  1366 

.Justice  r.  Gosling  1445 

.Justice  V.  Mersey  Steel  Co.  1595 

Kahl  r.  Jausen  534 

Kain  v.  Old  968 

Kaines  r.  Knightly  980 

Karla,  The             "'  1058 

Kavanagh  r.  Cuthbert  1008 

Kay  r.  Brookman  430,  1.574 

Kay  V.  Crook  885 

ICay  v.  Duchesse  de  Vienne  515 

Keable  v.  Payne  1429,  1446 

Keal  V.  Smith  536 

Kealy  v.  Tenant  897 

Keane  r.  Smallbone  1551 

Kearney  r.  King  22,  24 
Ivearney  r.  l^ond.  &  Brigh.  Ry.  Co.  207 

Ivearsley  v.  Phillips  1534 

Keeling  !•.  Ball  1572 

Keen  v.  Batshore  1497 

I^een  v-  Keen  182 

Iveen  i'.  Friest  703 

Keene  v.  Biscoe  698 

Kehoe,  Re  910 

ICeigwin  v  Keigwin  904 

Keinan  v.  Boylan  1312 

Keisselbrack  r.  I^ivingstone  972 

Keith  ?'.  Burrows  850 
Kell  V.  Charmer              986,  1018,  1031 


(2800) 


TABLE  OF  CASES  CITED. 


Ixiii 


PAGE 

Kell  V.  Nainby  722 

Keller  r.  IJlodd  264 

Kellick,  Ke  903 

Kellington,  Vicar  of,  r.  Trin.  Coll. 

1346 
Kellv  V.  Barnewall  1132 

Kelly  V.  Jackson  784,  801 


Kelly  V.  Keatinge 

905 

Kelly  V.  Lawrence 

725 

Kellv  V.  Jlid.  G.  W.  Ry.  Co. 

842 

Kellv  V.  Powlett 

1023 

Kelly  V.  Small 

675 

Kelly  V.  Smith 

1263 

Kelly  V.  Webster 

889 

Kelsall  V.  JVIarshall 

450, 

1490 

Kelse}'  i\  Bush 

644 

Kel.son  v.  Kelson 

969 

Kenible  v.  Farren 

665 

Kemp  r.  Derrett 

48 

Kemp  )'.  King 

420 

Kempland  v.  INIacanley 

688 

Kempson  v.  Boyle 

391 

Kempston  v.  Butler 

146 

Kempton  v.  Cross     10,  392,  1352, 

1353 

Kendall  r.  Hamilton 

1444 

Kendall  v.  Lond.  &  S.  W.  Ry.  Cc 

.  998 

Kenn's  case 

1430 

Kenna  ii.  Nugent 

1449 

Kennedy  v.  Cassillis 

1489 

Kennedy  v.  Hilliard 

1126 

Kennedy  v.  Lyell 

795, 

1525 

Kennerly  v.  Nash 

1558 

Kennett  v.  IMilbank 

924 

Kensington,  Ld.,  r.  Bouverie 

.175 

Kensington  r.  Inglis 

397 

KenttJ.  Jackson 

720 

Kent  r.  Riley 

171 

Kenworthy  r.  Schofield 

87 

1,948 

Keogh  r.  Keogh 

1037 

Keogh  V.  Leonard 

1188 

Kepp  V.  AViggett 

li: 

!,  120 

Kerin  v.  Davoren 

6j3 

Kernot  r.  Pittis 

1158 

Kerr  r.  Shed  den 

1354 

Kershaw  v.  Cox 

1551 

Kershaw  r.  Ogden 

89( 

),  897 

Kestrel,  The 

1213 

Kettlewell  v.  Barstow 

1526 

Kevan  v.  Crawford 

1334 

Kevil  i'.  Lynch 

900 

Key  V.  Cotesworth 

61 

Key  r.  Shaw 

51^ 

,  701 

KejTies  v.  Dk.  of  Wellington 

1352 

Keyse  v.  Powell 

150 

Kibble,  Ex  parte 

932 

Kidderminster,  Mayor  of,  v.  Hardwicke 

710 
Kid  gill  i\  Moor  109 

Kidner  v.  Keith  1560 


PAGE 

Kidney  ?'.  Cockburn  566,  573 
Kidston  r.  Emp.  Mar.  Ins.  Co.         989 

Kieran  r.  Sandars  728 

Kilbee  v.  Sneyd  704 

Kilgour  V.  Alexander  234 

Kilgour  V.  Finlj'son  531 

Kilby  r.  Rochussen  247,  698 

Killick,  Re  903 

Kilvert's  Trusts,  Re  103:5 

Kimball  v.  Morrell  402 

Kimmel  v.  Kimmel  1257,  1259 

Kimpton,  Re  908 
Kimpton  v.  Lond.  &  N.  West.  Rail.  Co. 
1129, 1132 

Kindersley  r.  Chase  1481 

Kine  r.  Balfe  885 

Kine  r.  Beaumont  414 

Kine  r.  Evershed  300 

King,  ex  parte  1130 

King,  In  re  723 

King  V.  Andenson  173 

King  V.  Bellord  128 

King  V.  Chamberlain  300 

King  V.  Clerk  •                   8 

King  V.  Cole  381 

King  r.  Corke  241 

King  V.  Foxwell  228 

King  V.  Francis  339 

King  V.  George  1046 

King  V.  Ha^\ks worth  55 

King  r.  Hoare  1444 

King  V.  Kins  1243,  1244 


King  V.  Norman 
King  r.  Paddock 
King  r.  Walker 
King  r.  AVaring 
King  V.  Zimmerman 
King  of  Two  Sicilies  v. 


712,  1423 

218 
274 
333 
404 
Wilcox      1248, 
1254 
King's  Coll.  Hospital  r.  Wheildon  1016 
Kingsford  r.  Gt.  W.  Ry.  Co.  486,  1536 
Kingsraill  v.  Millard  147 

Kingston  r.  Gale  805 

Kingston  v.  Knibbs  990 

Kingston  r.  Lesley  1356 

Kingston's,  Duchess  of,  ca.se  787,  1200, 
1201,  1435,  1437,  1439,  1487 
Kinnersley  r.  Orpe       1403,  1404,  1440 
Kinsman  r.  Rouse  96 

Kinstrca  v.  Preston  1000 

Kip  r.  Brigham  1423 

Kippen  r.  Darley  1043 

Kirby  i\  Hickson  23 

Kirby  v.  Simpson  54,  300,  302 

Kirchner  ?'.  Venus  201 

Kirk.  Ex  parte  1040 

Kirk  V.  Eddowes  976,  1043,  1044,  1046 
Kirkham  v.  Marter  884 

Kirkland  v.  Nisbet  62 


(2801) 


Ixiv 


TABLE  OF  CASES  CITED. 


PAOE  I 

Kirknian  i:  Oxley  3:i7  ]  Lamb  r.  Walker 

Kirk)>a1rick  v.  Gowan  10U4  j  Lamb's  case 

Kiikstall  Brewery  Co.  v.  Furness  Ky.  i  Lambert,  Ke 


Co. 
Kirkwood's  case 
Kirtland  v.   Ponnsctt 
Kirwan  r.  Cockburn 
Kirwan  r.  (iorman 
Kirwan's  Trusts,  lie 
Kite  aiul  Lane's  ease 
KIii)j;eman,  <ioods  of,  Re 
Knajip  /•.  Maltby 
Knai»i)'s  ease 
Knatchbull  c.  Fowle 
Knight  r.  P.arl)er 
Knight  r.  Campbell 
Knight  r.  Clements 
Kniglit  V.  Cox 
Knight  V.  Crockford 
Knight,  Re,  Knight  v.  Gardner 
Knight  V.  Hasty 
Knight  i\  Knight 
Knight  V.  Martin 
Knight  V.  M.  of  Water  ford 


Knights  r.  Wiffen 
Knill  V.  Hooper 
Knill  V.  Williams 
Knobell  v.  Fuller 
Knowles,  In  re 
Knowlman  r.  Bluett 
Knox  r.  Busliell 
Knox  V.  Ld.  Maj'O 
Knox  V.  Waldoborough 
Koebel  v.  Saunders 
Kopitoffr.  Wilson 
Koster  v.  Reed 
Kraft  r.  W'ickey 
Krishna    Behari    Roy 

Chowd  ranee 
Kronheim  v.  Johnson 
Kufh  r.  Weston 
Kyle  V.  Jeffreys 
KjTiaston  v.  Mackinder 
Lackingtok  v.  Atherton 
Lacon  r.  Higgins 
Lad  ford  v.  Gretton 
Lafone  v.  Falkland  Island  Co, 
Laing  v.  Barclay 
Laing  v.  Kaine 
Lainson  v.  Tremere 
Lake  v.  D.  of  Argyll 
Lake  v.  Billers 
Lake  v.  King 

Lakeman  v.  Mountstephen 
Laker  v.  Hordern 
Lalor  V.  Lalor 
Lamb  v.  Orton 
Lamb  V.  Munster 


325 

2!).j 

1418 

118 

912 

14(i8 

1517 

1551 

748,  751 

1186 

892 

4G8 

1548 

128 

878 

1188 

954 

102:5 

1569 

597, 

795 

727 

997 

1549 

337 

184 

248,  886,  888 

212 

1505 

1470 

998 

999 

223 

1483 

Brojeswani 

1447 


407, 
596, 


867 

198 

949 

50 

732 

1217 

108 

792 

1252 

1570 

113,  119 


791 


647 

4 

882,  883 

185 

687 

219,  1537 

1243 


Lambert  r.  Norris 
Lambert's  Estate,  In  re 
Lamond  r.  Davall 
Lam:)iit  V.  Crook 
Lamplugh  ?'.  Lamplugli 
Lampon  r.  Corke 


PAGE 

145 

742 

1:534 

861 

Errn/a 

2f;:j 

1079.  108.5 

809 

118,  7:56 


958 


Lamprell  v.  Billericay  Union   841,  845 


Lanauze  v.  Palmer 
Lancaster  Canal  Co. ' 
Lane  v.  BagshaAV 
Lane  r.  Burghart 
Lane  r.  CJray 
Lane  v.  Harrison 
Lane  v.  Ironmonger 
Lane  v.  Nixon 
Lane.  In  re 
Lane's  case 


414 

8S0 

464 

882,  88:: 

1523 

1471 

211 

997 

185 

10,  25,  27,  169 


144 


Lanfranchi  v.  Mackenzie 

Lang  V.  Gale 

Lang  V.  Smith 

I^angdale  v.  Trimmer 

Langdale  ?'.  AVhitiield 

Langdon  v.  Hulls 

Langen  v.  Tate 

Langford  r.  Selnies' 

Langford  v.  Woods 

Langhnrn  v.  Allnutt 

Langley  v.  E.  of  Oxford 

Langmead  i\  ]\Iaple 

I^angridge  v.  Campbell 

Langston  v.  Cotton 

Langton  v.  Carleton 

Langton  v.  Higgins 

Lanvon  r.  Martin 

La  Plata 

Lapsley  v.  Grierson 

Lascelles  v.  Ld.  Onslow 

Lassence  v.  Tierney 

Lasseur  11  Tyrconnel 

Latch  v.  Wedlake 

Latkow  1'.  Earner 

La  Touche  r.  Hutton 

Laver  r.  Fielder 

Lavie  v.  Phillips 

Lavies,  In  re,  Ex  parte  Stejihens 

Law  V.  Wilkin 

Lawdon  r.  Lawdon 

Lawes,  In  re 

Lawes  v.  Reed 

Lawler  v.  Linden 

Lawless  v.  Queale 

Lawley's,  Lady,  case 

Lawrence  r.  Baker 

Lawrence  r.  Campbell 

Lawrence  n  Ckark 

Lawrence  v.  Hitch 


961 
61 
44 

185 

414 

463,  464 

125 

301 

533,  534 

677 

1470 

716 

1086 

194 

897 

Errata 

8 

135,  i<;o 

147 

885 

1484 

531 

1429 

602 

721 

8 

865 

214 

1198 

1340,  1540 

1202 

49 

383 

1166 

1227 

792 

410,  411,  416 

154 


(2802) 


TABLE  OF  CASES  CITED. 


Ixv 


Lawreuce  v.  Honghton 
Lawrence  v.  Lawrence 
Lawrence  v.  Maule 
Lawrence  v.  Walmsley 
Lawrenson  v.  Butler 
Laws  r.  Kaud 
Lawson  v.  Carr 
Lawson  r.  Stoddart 
Laybourne  v.  Crisp 


PAGE 

llHl 
Erniiit 
42:{ 
981 
■    880 
45 
8 
1090 
543,  552,  553, 
1339,  1340 
Lavland  r.  Stewart  849 

Layer's  case  313,  41fi,  821 

Laythoarp  v.  Bryant  873,  879,  880 

Lazenby  r.  Eawson  738 

Leii  V.  Wheatley  79s 

Leach,  Re  "  905 

Leach  v.  Buchanan  72H 

Leach  r.  .Simpson  372,  7()9 

Leader  r.  Barry  515,  1356 

Leaf*'.  Butt  411 

Leake  v.  M.  of  Westnieath  1339,  1340 
Leame  r.  Bray  7 

Learmoutb,  ex  parte  491 

Learoyd,  ex  parte,  re  Foulds  1492 

Leary'f.  Lloyd  1512 

Leather  Cloth  Co.  v.  Hieronimus    877, 

975 
Le  Caux  v.  Eden  1430 

Lechmere  v.  Fletcher  924,  928,  1444 
Ledbetter  v.  Salt  693 

Ledgard  v.  Thompson  954 

Lee  Peer.  '     1518 

Lee  V.  Angas  1051 

Lee  r.  Birrell  788,  813 

Lee  r.  Dick  978 

Lee  r.  Everest  '  1059 

Lee  V.  Gansel  1335 

Lee  V.  Gaskell  889 

Lee  V.  Griffin  895 

Lee  V.  Huson  322 

Lee  ('.  Johnstone  163 

Lee  r.  Lane.  &  Yorks.  Ey.  Co.  736,  965 
Lee  ('.  Meecock  1335 

Lee  r.  Merest  420 

Lee  i:  Pain  961,  1029,  1039,  1046 

Lee  r.  Smith  855 

Lee  r.  Wilmot  927 

Leech  r.  Bates  905 

Leeds,  D.  of,  v.  Ld.  Amherst  95 

Leeds  v.  Cook  137,  336,  416 

Leeds  v.  Lancashire  977 

Leeds  &  County  Bank  v.  Walker  1550 
Leeds  &  Thirsk  Ry.  Co.  v.  Fearnley  128 
Lees  r.  Marton  524 

Lees  V.  Whitcomb  872 

Leeson  v.  Holt  1421 

Leete  v.  Hart  300 

Lefevre  v.  Lloyd  982 

Lefroy  v.  Burnside  1246 


Lefroy  r.  Walsh 
Legeyt  v.  O'  Brien 
Leggatt  V.  Tollervey 


PAGE 

160 
216 
794,  1265,  1276, 
1422 
Legge  V.  Edmonds     129,  664,  817,  818 
Leggott  V.  Gt.  N.  Ry.  Co.  117 

Legh  V.  Hewitt  1011 

Legh  V.  Legh  (i54 

Leicester,  E.  of,  r.  Walter  337 

Leidemann  ■?'.  Schultz  988 

Leifchild's  case  969 

Leigh's    Estate,    In    re,    Rowctlitle    r. 
Leigh  1538 

Leigh  Peer.       564,  572,  573,  575,  1504 
Leigh  V.  Baker  238 

Leigh  V.  Jack  143 

Leigh  '('.  Lloyd  1565 

Leighton -y.  Leighton  1043,  1346 

Leke's  case  267 

Lelaud  v.  Murphy  921,  926 

Lemage  1'.  Goodban  914 

Lemaitre  v.  Davis  145 

Le  Marchant  v.  Le  Marchant  and  Rad- 
cliff  746 

Le  Marchant's  Gardner's  Peer,  case  129 
Lemayue  v.  Stanley  878 

Lemere  v.  Elliott  149 

Lemon  v.  Dean  1567 

Lempriere  v.  Lange  128 

Lench  v.  Lench  738,  740,  869 

Le  Neuville  v.  Nourse  1004 

Leonard  v.  Simpson  711 

Leonard  r.  Taylor  1002 

Lepiot  r.  Browne  213 

Lepping  r.  Kedgewin  1471 

Leroux  v.  Brown  69,  888 

Leslie  v.  De  la  Torro  980 

Leslie  v.  Leslie  914 

Lessee  of  Leader  r.  Duggan  411 

Lessee  of  Phayre  v.  Fahy  58 

Le  Strange  i\  Rowe  154 

Lethljridge  v.  Cronk  485 

Lethulier's  case  989 

Lett  ('.  Randall  183 

Levey  and  Rt)bson,  Re  922,  928 

Levinson  y.  Syer  952 

Levitt  V.  Levitt  133:? 

Levy  V.  Hale  732 

Levy  V.  Merrill  872 

Levy  i\  Pope  805 

Levy  V.  Wilson  265 

Lewes'  Trusts,  Re  .  219 

Lewis,  Re  909,  940 

Lewis,  falsely  called  H.,  V.  Haywood  21 3 
Lewis  r.  Brass  877 

Lewis  V.  Evans  199 

Lewis  V.  Gt.  West.  Ry.  Co.  938 

Lewis  ('.  Hartle  1546 

Lewis  V.  Ld.  Kensington  953 


E  LAW  OF  EVID. — Y.  I. 


(2803) 


Ixvi 


TABLE  OF  CASES  CITED. 


Lewis  V.  Lewis 
Lewis  V.  Marsliall 
Lewis  V.  Parker 
Lewis  V.  Payn 
Lewis  V.  Pennington 
Lewis  r.  Roberts 
Lewis  V.  Sapio 
Lewis  V.  Simpson 
Lexington  r.  Clark 
hey  V.  Ballard 
Ley  V.  Barlow 
Leyfield's  case 
Leyland  t\  Stewart 


PAGE 

909 

37,  988,  1011 

:54o 

1554,  1556 

801 

943 

1580 

18« 

884 

1567 

419,  1534 

1554 

849 


PAGE 

Liverpool  Borough  Bank  r.  Turner  850 


Liberia,  Rep.  of,  v.  Imperial  Bk.    1536 

Liberia,  Rep.  of.  v.  Roye  1536,  1539 

Liebmau  v.  Pooley  367,  496 

Liddell  v.  Norton  1534 

Lidster  r.  Borrow  300 

Lightfoot  V.  Bickley  1484 

Lightfoot  V.  Cameron  1127 

Lightner  r.  Wike  423 

Like  V.  Howe  723 

Lilley  r.  El  win  49,  195 

Lillywhite  v.  Devereux  59,  898 

Limerick  v.  Limerick  164,  386 

Lincoln  v.  Wright  895,  1196 

Lindenau  r.  Desborough  1212 

Lindenberger  v.  Beal  197 

Lindgren  v.  Lindgren  1038,  1039 

Lindley  v.  Girdler  954 

Lindley  r.  Lacey  966,  967 

Lindo  r.  Rodney  1430 

Lindon  v.  Sharp  171 

Lindsay  r.  Wicklow,  E.  of  119 

Linneli  &  Walker  v.  Gunn  1465 

Linsell  r.  Bonsor  62,  925 

Lion,    The,    Owners    v.  York    Towti 

Owners  226 

Lipscombe  v.  Holmes  695 
Lisbon  Steam  Tramways  Co.,  Re   1092 

Lisburne,  Ld.,  v.  Davies  147 

Lisle  Peer.  573 

List's  case  1130 

Lister  r.  Leather  58 

Lister  r.  Perrj^man  41 

Lister  v.  Priestly  694 

Lister  r.  Smith  967 

Litchtieldr.  Ready  125,  1441 

Little  V.  Larrabee  813 

Little  V.  Libby  600 

Little  V,  AVingfield  153, 155,  156 

Littlechild  r.  Banks  293 

Littler  r.  Holland  973,  975 

Litton  r.  ^Murphy  490 

Liver  Alkali  Co.  r.  Johnson  998 

Livermore  v.  Herschell  1448 
Liverpool  Adelphi  Loan  Assoc,  v.  Fair- 

huist  723 

Liverpool  Borough  Bank  v.  Eccles   879 


LI  an  over  r.  Homfray 
Llewellyn  r.  Badeley 
Llewellyn  v.  Jersey,  E.  of 
Llewellyn  r.  Winckworth 
Lloyd  V.  Fleming 
Lloyd  V.  Gregory 
Lloyd  r.  Harvey 
Lloyd  V.  Key 
Lloyd  i\  Maund 
Lloyd  v.  IVIostyn 
Lloyd  V.  Passingham 
Llojd  V.  Roberts 
Lloyd  V.  Sandiland 
Lloyd  V.  Spillet 


4~ 

1537 

876,  981 

319 

851 

860 

1045 

464 

62 

794 

1255 

905 

197 

^69 


868, 


Lloyd  V.  Waterford  &  Lim.  Ry.  Co.  939 


Lloyd  r.  Willan 

Lobb  r.  Stanley 

Lock  V.  Furze 

Lock  V.  Norborne 

Locke  V.  James 

Lockett  V.  Gary 

Lockett?'.  Nicklin 

I..ockwood  V.  Smith 

Lodge  V.  Phipher 

Lodge  r.  Richard 

Lofl'us  r.  Maw 

Login  r.  Prin.  of  Coorg 

Londesborough,  Ld.,  v.  Foster 

Londesborough's,  Ld.,  case 

London  v.  Lynn 

Lond.  &Birm.  Ry.  Co.'s  case 

Lond.  &  Brigh.  Ry.  Co 


671 
878,  879.  924 
1001 
1442 
920 
420,  1.526 
965,  980 
661 
1590 
622,  704 
720 
9 
707 
707 
1514 
890 
Fairclough 
1546,  1560 
Lond.  Chart.  Bk.  of  Australia  v.  White 

6 
Lond. ,  City  of,  v.  Gierke  542 

Lond.,  City  of,  r.  Perkins  427 

Lond.,  City  of.  Gas  Light  &  Coke  Co. 
V.  Nicholas  840 

Lond.  Comm.  ofSewerstJ.Gellatlyl442 
Lond.  Comm.  of  Sewers  r.  Glasse  1524 
Lond.  Dock  Co.  r.  Sinnott  842 

Lond.  Gas  L.  Co.  r.  Chelsea  Ves.  1.527 
Lond.  Gas  Meter  Co.,  Re,  The  1091 
Lond.  Mayor  of,  v.  Long  1025 

Lond.  School  Board  v.  Harvey       1336, 

1385 
Lond.  &  N.  W.  Ry.  Co.  v.  Durham  938 
Lond.  &  N.  W.  Ry.  Co.  r.  M 'Michael 

1515 
Lond.  &  N.  W.  Ry.  Co.  v.  West      124, 

125 
Lond.  &  S.   West.   Bk.   v.   Wentworth 
730.  1561 
Lonergan  v.  Roy.  Ex.  Ass.  1057 

Long  c.  Barrett  322 

Long  V.  Champion  651 

Long  V.  Donegan  1595 


(2804) 


TABLE  OP  CASES  CITED. 


Ixvii 


PAGE 

Long  t\  Hitchcock  1285 

Long  r.  Keightley  334 

Long  V.  Lamkin  1260 

Long  r.  jVIillar  876 

Long's  case  745 

Longchamp  i\  Fish  178 

Longeneoker  v.  Hyde  681 

Longfcllo\\-  r.  Williams  878 

Longworth  r.  Yelverton  1142 

Looniis  V.  Green  1448 

Loomis  V.  Jackson  1038 

Loomis  &  Jackson  v.  Loomis  531 

Lopez  V.  Andrew  142,  153 

Lopez  IK  Deacon  1534 

Lord  V.  Colvin  9,  228,  520,  1204,  1205, 
1206,  1223,  1226 
Lord  V.  Commiss.   for  City  of  Sydney 

141 


Lord  V.  Lord 

1344 

Loringr.  Steineman 

218 

Lothian  v.  Henderson 

1481,  1482 

Lovat  Peer. 

564,  574 

Lovat's  Ld.,  case 

1184 

Love,  in  re 

911 

Love  r.  Bell 

Errata 

Lovell  V.  Wallis 

1187 

Loveridge  r.  Botham 

736 

Lovery  v.  Smith 

970,  971 

Low's  case 

812 

Lowe  V.  Carpenter 

97,  151 

Lowe  V.  Govett 

142 

Lowe  (•.  London  &  N.  W. 

Ry.  Co.     843 

Lowe  r.  Peers 

110 

Lower.  Ross 

294 

Lowick's  case 

313 

Lowrey  r.  Barker 

864 

Loyd  r.  Freshfield 

788,  1204 

Lubbock  V.  Tribe 

404 

Lucas  c.  Beale 

253 

Lucas  r.  Bristow 

995 

Lucas  V.  Cooke 

1297 

Lucas  r.  De  la  Cour 

655 

Lucas  ('.  Groning 

988 

Lucas  r.  Tarleton 

249 

Lucey  i\  Murphy 

953 

Luckie  v.  Bushby 

736 

Lucy  V.  Mouflet 

703 

Ludersi).  Anstey 

721 

Ludlow,  May.  of,  v.  Charlton  838,  839, 

845,  1351 

Luff  f.  Lord 

172 

Luke,  Re 

910 

Lumley  v.  Gye 

465,  466 

Lund  V.  Tj'ngsboro 

520,  522 

Lundy  r.  Reilly 

995 

Lunnis  v.  Row 

1185 

T  illTlf  It"    T 

1128,  113] 

1526 

Luscombe  r.  Steer 

Lush  r.  Druse 

1038 

P.\GE 

Lush  ('.  Russell  264 

Lushington  r.  Onslow  ISO 

Lutscher,  in  re,  ex  p.  Waddell       1105 
Lutterell  v.  Reynell  431,  1262 

Lyde  v.  Barnard  933,  948 

Lyell  v.  Kennedy  478,481,795,  Errata 
Lygon  r.  Strutt  582 

Lyle  r.  Ellwood  190,  515,  1333 

Lyle  V.  Richards  61,  63 

Lyman  ?'.  Lj^man  727 

Lynch  v.  Gierke  645,  1364 

Lynch  v.  Lynch  859,  860,  862,  863 

Lynde  v.  Judd  1318 

Lyne,  ex  parte  1130 

Lynn,  Mayor  of,  v.  Denton  1285 

Lj'nn  ('.  Robertson  432 

Lj'on  V.  Home  172 

Lyon  ?'.  Lyman  1584,  1590 

Lyon  r.  Mells  998 

Lyon  V.  Reed      835,  857,  859,  863,  864 
Lyon  r.  Tweddell  483 

Lyon's  Trusts,  in  re  1033 

Lyons  v.  De  Pass  8 

Lyons  r.  Mulderry  118 

M.  folsely  called  H.  v.  H.  213 

jNIaber  v.  Maber  929 

Maberley  v.  Sheppard  896 

Maby  v.  Shepherd  725 

Macallum  v.  Turton  1243,  1244 

jMcAi'dle  %).  Irish  Iodine  Co.  845 

Macartney  v.  Graham  404 

Macbeath  v.  Haldimand  63 

Macbride  v.  Macbride  1228,  1250, 

1251 
M'Cabe,  Re  918,  919 

M'Calmont  v.  Rankin  850 

M'Cance  v.  Lond.  &N.  W.  Ry.  Co.  723 
Maccann  v.  Maccann  795 

INI 'Cannon  v.  Sinclair  141 

M'Carthy  ■;;.  De  Caix  1476 

M'Carthy  v.  O'Brien  923 

M'Clory  v.  Wright  831 

McCollin  V.  Gilpin  1015 

M'Combie  v.  Anton  424 

MacCormack  v.  MacCormack     970,  972 
IM'Cormick  v.  Garnett  67 

McCorquodale  v.  Bell  1528 

M'Culloch  V.  Dawes  661 

M' Daniel  v.  Hughes  1445 

M'Donald  v.  Longbottom  1015 

M' Donald  v.  Rainor  1471 

IM'Donnell  v.  Conry  798 

Macdonnell  v.  Evans     1236,  1251,  1252 
M'Donnell  v.  Murray  404 

M'Donnell  v.  Pope  862 

INIacdougal  v.  Young  495 

McDougall  r.  Field  980 

M'Dowall  r.Lyster  298 

Mace  c.  Cadell  721 


(2S05) 


Ixviii 


TABLE  OF  CASES  CITED. 


PAGE 

M'Elveney  r.  Connellan  815 

M'Ewan  r.  Campbell  722 

M'Ewan  v.  Smith  898 

M'Fadden  I'.  Murdock  319,1211 
M'Fadzen  i\  May.  &  Corp.  of  Liverpool 

Mat'tUrlan  r.  Kolt  796 

iM'Faiiane,  Ke  Errata 

Macferson  r.  Thoytes  730 
M 'Galley  r.  Alston    188,  189,  397,  399, 

681 

M'Gonnell  v.  Murphy  837 

M'Gregor  v.  Eainbrigge  203 

Macgregor  v.  Keily  202 

M'Gregor  v.  Topham  1573 

M'Gregor  Laird,  The  1540 

M'Guire's  case  367 

M'Hardy  v.  Hitchcock  463 

Machell  r.  Ellis  679 

Machin  v.  Griudon  1584 
Machu  V.  Lond.  ck  S.  W.  Ey.  Co.      733 

Macintosh  v.  Haydon  1549 

Mclntyrer.  Mancius  1243 

Mclver  r.  Walker  1038 
Mackay  v.  Com.  Bank  of  New  Bruns- 

■\vick  778 

M'Kay  v.  Rutherford  886 

McKechnie  v.  Vaughan  1039 

McKee  v.  Farnam  1340 

M'Kee  v.  Nelson  1208 

McKenire  v.  Eraser  586 

McKennan  v.  Eager  160,  1353 

McKenzie  v.  British  Linen  Co.  719 

Mackenzie  v.  Dunlop  988 

Mackenzie  v.  Pooley  227 

Mackenzie  i\  Yeo  804 

M'Kewan  v.  Rolt  486 

M'Kev,  Re  907 

Mackintosh  v.  ISIarshall  59,  200 

Mackley  v.  Chillingworth  1057 

M'Kone,  Re  1127,  1131 

Maclae  v.  Sutherland  204,  205 

McLaren  v.  Home  1056 

IMcLaren  v.  Home  1056 

Maclean  v.  Dunn  947 

M'Lean  v.  Hertzog  379 

M'Lellau  r.  Richardson  812 

IMacleod  r.  Wakley  323 

McLonghlin  v.  Dwyer  484 

McMahon  ('.  Burchell  653 

M'Mahon  v.  Ellis  188,  1244 

M'Mahon  v.  Lennard  188,  189 

M'Mahon  v.  Elroy  218 

M'Mahon  r.  Rawlings  1484 
M'Manus  v.  Laucas.  &  Y.  Ry.  Co.  938, 

998 

M'Master  and  Boyle's  case  411 

M'Murdo,  Re        '  912 

M'Naghten's  case  1213 


M'Naughten's  trial  208 

M'Neil  r.  Perchard  1318 

M'Neil  v.  Philip  727 

McPherson  r.  Watt  172 

Macrorv  r.  Scott  876,  882 

M' Vicar.  Re  913 

M'Williams  v.  Nishy  116 

Maddison  v.  Alderson  720.  894,  K95 
Maddison  r.  Nut  tall  683 

Maddock,  Re  9U9 

Maddox  r.  Fisher  8 

Maden  v.  Catanach  1175,  1178 

Magdalen  College  v.  Att.-Gen.  95,  115 
Madalen  College,  Gov.  of  r.  Knott  394 
Magee  v.  Atkinson  982 

Magee  v.  Mark  133,  134,  831 

Magennis!'.  MacCullough  861 

Maghee  v.  O'Neil  931 

Magnay  r.  Burt  1127,  1134,  1135,  1136 
Magnay  r.  Fisher  725 

Magnay  v.  Knight  376 

Magnet,  The  225 

Magoun  v.  N.  Engl.  Ins.  Co.  1475,  1480 
Magrath  v.  Browne  1235 

Magrath  v.  Hardy  114,  1428,  1445 

Mahalen  v.  Dublin  Distil.  Co.  876 

Maharajah  Pertab  Narain  Singh  i\  Ma- 
haranee Subhao  Kooer  918 
]\Iahon  r.  Mahon  1128,  1133 
Mahon's  Trust,  Re  1327 
Mahony  v.  Kekule  205 
Mahony  r.  Widows'  Life  Ass.  Fund  1527 
Mahood  v.  Mahood  403 
Maid  of  Aukland,  The  1453 
Maingay  i\  Gahan  1430 
Mair's  Estate,  Re  1566 
Major  i\  Williams  921 
Malcolm  v.  Ray  1079 
Malcolm?)  .-Scott  653 
IVIalcolmson  v.  Morton  991 
Malcomson  v.  Baldock  226 
Malcomsou  r.  Clayton  234 
Malcomson  v.  0'I)eall2,  141,  154,  585, 

586 
Maiden  v.  Gt.  N.  Ry.  Co.  1527 

Male  i\  Roberts  9 

Mallalieu  v.  Hodgson  116 

Mallan  v.  May  962 

Mallan  v.  Radloff  1005 

Mallett  V.  Bateman  881 

Mallison,  Re  1065 

Malone  ?\  O'Connor  102 

Malone  v.  Soillessy  122(J 

Malcraey  v.  Bartley  1242,  1244 

^lalpas  V.  Clements  'i^d 

:\ralpas  V.  London  &  S.  W.  Ry.  Co.  966 
Maltby  v.  Christie  693 

Mai  ton  V.  Nesbit  121:5 

Man  r.  Ricketts  21,  163 


(2806) 


TABLE  OF  CASES  CITED. 


Ixix 


PAGE 

Manby  v.  Bewioke  1537 

Maiiby  r.  Curtis  217,  583,  599 

Manby  o.  Scott  211,  212 

Manchester,  Bank  of,  ex  parte  892 

Manchester  Bonded  Warehouse  Co.  v. 

Carr  1002 

Mandeville  v.  Welch  654 

Mangles  r.  Dixon  720 

Manley  r.  Boycot  981 

Manley  v.  Shaw  1173 

Maun  Ee  907 

Mann  v.  Lang  737,  738 

Mann  r.  Nunn  889,  977 

Mann  v.  Owen  1465 

Planners  v.  Postan  1567 

Manning  v.  Cox  654 

Manning  v.  East  Cos.  Ry.  Co.         1337, 

1345 
Mansell  v.  Clements  1208 

Manser  v.  Back  971 

Manser  v.  Dix  796 

]\Iarathon,  The  227 

Marbury  v.  Madison  815 

March  <•.  Keith  801 

Marchmont  Peer.  573,  1518 

Mare  r.  Charles  1019 

Margareson  v.  Saxton  653 

Mai'ia  das  Dorias,  or  Dores,  The  1510 
Marianski  v.  Cairns  645 

Marine  Investment  Co.  i\  Haviside  168 
Markey  i\  Coote  295 

Markham  t\  Gonaston  1554,  1561 

Markham  r.  Stanford  852 

Marks  v.  Lahee  589,  595 

Marmyon  Peer.  573 

Marriage  r.  Lawrence  1359,  1514 

Marriotr'.  Marriot.  1433,  1465 

Marsden  i\  Goode  59 

Marsden  v.  Lane.  &  York  Ey.  Co.  56 
Marsden  i\  Overbury  1087 

Marsh  v.  Collnett  111,  1364,  1365, 

1511 
Marsh  v.  Keith  801 

Marsh  t\  Loader  127 

Marsh  &  Ld.  Granville,  Ee  153 

Marsh  v.  Lowder  127 

Marsh  v.  Marsh  180,  920 

Marshal  v.  Crutwell  869 

Marshall  v.  Berridge  873 

IMarshall  v.  Cliff  677,  678 

Marshall  v.  Gougler  ]  556 

Marshall  r.  Green  894,  898 

Marshall  r.  Lamb  188,  189 

Marshall  v.  Lynn  975 

Marshall  v.  Smith  95 

Marshall  v.  The  Ulleswater  St.  Na.  Co. 

141 
Marshall  v.  The  York,   Newcastle,   & 

Berwick  Ey.  Co.  1080 


Marston  v.  Dean 
Marston  v.  Downes 
Martin,  Ee 
Martin  r.  Andrews 
Martin  r.  Gale 
Martin  r.  Geoghegan 
Martiu  r.  Hemming 
Martin  v.  Kennedy 
Martin  v.  NicoUs 
^lartin  v.  Podger 
Martin  v.  Smith 
Martin  v.  Thornton 
Martin's  case 
Martindale  i'.  Booth 
Martindale  v.  Falkner 
Martyn  t\  Williams 
Marvin  t\  Wallace 
Mary,  The 


PAGE 
37() 

418,  790,  1253 

Errata 

1059 

128 

926 

473 

1453 

1489 

647 

852,  855 

808 

325.  326 

171 

103 

251 

897 

1482 


The  Mary  or  Alexandra  1247,  1540 

Mash  V.  Densham  245 

Mason  v.  Bradley  1549,  1550 

jMason  r.  Farnell  58 

Mason  v.  Kiddle  951 

Mason  v.  IMason  221 

Mason  i\  Riddle  951 

Mason  v.  Skurray  988 

Mason  v.  Wood  1406 

Mason  v.  Wythe  486 

]\[asper  and  wife  v.  Brown  1462 

Massey  v.  Allen  614,  1091 

ISIassey  -v.  Johnson  889 

Master  r.  Miller            1548,  1549.  1556 

INIaster  Pilots  &  S.  of  Newc.  v.  Bradley 

1025 

Masters  v.  Barrets  247,  346 

Masters  r.  Masters  986 

Masters  r.  Pollie  144 

Mather  r.  Lord  Maidstone  346 

Mather  r.  Trinity  Church  153 

Mathews  v.  Mathews  1041 

Mathews  v.  Ovey  1594 

Mathias,  Ee.  911 

IViatson  r.  Booth  1559 

Matson  v.  Yv'haram  883 

Matthew  r.  Osborne  114,  1441 

Matthews  v.  Matthews  1044 

]\ratthews  v.  Port  1504 

]\Iatthews  r.  Whittle  715 

Matthey  v.  Wiseman  1445 

Matts  V.  Hawkins  144 

Maubourquet  v.  Wyse  1478,  1480 

Maude  r.  Baildon  Local  Board  59 

Maugham  v.  Hubbard  1203,  1204 

Maund  i'.  Monmouth  Can.  Co.  301 

Maunsell  i'.  Ainsworth  1053 

Maunsell  v.  Hedger  923 

Maunsell  v.  White  •   721,  885 

Mavor  v.  Payne  888 

.Mawby  v.  Barber  337 


(2807) 


Ixx 


TABLE  OF  CASES  CITED. 


Mawsoii  V.  Hartsink     1257,  1259,  1260 
Maxwell  V.  Painell  1009 

May,  Ee  920 

May  V.  Brown  324 

May  V.  Footner  243 

May  V.  G Wynne  1285 

May  r.  Hawkins  486 

May  v.  Selbv  1057 

May  r.  Taylor  665,  667 

Mavfield  v.  Robinson  835 

Maylield  v.  Wadsley  894 

Mayor  v.  Johnson  403 

Mead  v.  Daubigny  322 

Meade  v.  Smith  813 

Meagoe  r.  Simmons  1203 

Mears  r.  Ld.  Stourton  1174 

Meath.  Bp.  of,  v.  Ld.  Belfield  543 

Meath,  Bp.  of,  v.  Mq.  of  Winchester  36, 
111,  581,  582,  583,  584,  683,  796 
Mechanics  Bk.  of  Alexandria  v.  Bk.  of 
Columbia  53:> 

Mechelen  r.  Wallace  884,  8^;9 

Mecredy  r.  Taylor  211 

Meddowcroft  t;.  Huguenin  1464 

Medlycott  v.  Assheton  182 

Mee  c.  Keid  11  so 

Meekins  v.  Smith  1126,  1127 

Megevand,  Re,  ex  parte  Delhasse     203 
Megson  v.  Hindle  185 

Mel  en  v.  Andrews  700,  706,  780 

Melhuish  v.  Collier  320 

Mellish  V.  Rawdon  52 

Mellorr.  Sidebottom  714 

Mellow  V.  Mav  859 

Melville'sLd.!;  case  10,  20, 138,  634,  779. 

1252 
Melvin  v.  Wliiting  426 

Mercant.  Credit  Associat.,  Re         1091 
Mercer  v.  Cheese  214 

Meicer  v.  Sparks  140 

Mercer  c.  Whall  357,  358,  362 

Mercer  r.  Wise  723 

Mercer  v.  Woodgate  155 

Merchants  Co.,  Re  1091 

Mercier  r.  Cotton  472,  473 

Meredith  r.  Footner  536,  675,  676 

Meredith  v.  Meigh  899 

Merle  v.  More  798  [ 

Merrick  v.  Wakley  1354  | 

Merrill  v.  Morton  962 

Merritt,  Re  915 

Merry  v.  Nickalls  201 

Messin  ?).  Ld.  Massareene  1489 

Messina,  v.  Petrococchino      1478,  1479 
Meteor.  The  227 

MetropoL  Bk.,  In  re  The  1091 

Metropol.  Ry.  Co.  v.  Defries  714 

MetropoL  Ry.  Co.  v.  Jackson  39.  40,  52 
Metters  v.  Brown  118,  14s,  664 


PAGE 

Mews  V.  Carr  948 

Mexican   &   S.    American  Co.   Re,  ex 

parte  A.ston  1247 

Meyer  r.  Dres.ser  110 

Meyer  v.  Montriou  663 

Meyer  v.  Ralli  1479 

Meyer  v.  Sel'ton  422 

Meyerhoff  v.  Froehlich  926 

Meyn ell's  case  752 

Meyrick  v.  James  423,  1195 

Meyrick  v.  Woods  411 

Michael  v.  Scockwith  1556 

Michael  v.  TredAvin  998 

Michell  v.  Rabbetts  582 

Michell  V.  Williams  42.  43 
Midld.  Ry.  Co.  v.  Hunchwood  Brick  & 

Tile  Co.  64 
Midld.    Ry.  Co.  v. .  Withington  Local 

Board  300 

Middlesex  Sheriffs,  case  of  4 

Middleditch  r.  Ellis  977 

}.Iiddlehurstt).  Johnson  178 

-Middleton,  Re  919 

Middleton  r.  Earned  134,  1262 

Middleton  r.  Croft  103 

Middleton  v.  Mass  582 
Middleton  v.  Melton          368,  592,  597 

681 

Middleton  v.  Pollock  721 

Middleton's  case  118 

:\Iigotti  r.  Colville  21 

Mihin,  The  1453 

Mildrone's  case  1180 

Miles  V.  Bough  386,   1515 

Miles  V.  Dawson  1252 

Miles*.  M'Cullough  1136 

Miles  V.  O'Hara  491,  492 

Millar  V.  Heinrick  1215 

Millard  v.  Bailey  1023 

Miller  v.  Coyert  1455 

Miller  v.  Cook  174 

Miller  v.  Huddlestone  182 

Miller  v.  Iryine  872 

Miller  r.  James  1484 

Miller  r.  Dawson  534 

Miller  r.  Salomons  1180 

Miller  v.  Tetherington  989,  991 
Miller  v.  Travers             965,  984,  1037, 

1039 
Miller's  case  674,  1207,  1208 

JMilligan,  Re  911 

Millingtou  r.  Loring  291 

Millman  v.  Tucker  1250,  1255 

Millner's  Estate,  Re  129 

Mills?'.  Barber  341,  345 

Mills  V.  Dennis  665 

Mills  V.  Fowkes  930 
Mills  v.  Mayor  of  Colchester  154,  1417 

Mills  r.  Mills  467 


(2S0-^) 


TABLE  OF  CASES  CITED. 


Ixxi 


PAGE 

PAGE 

Mills  V.  Oddy                    359 

,  418,  792 

Moons  V.  De  Bern  ales 

1432 

Mills  V.  Scott 

249,  255 

337 

V,    ITX^JUI 

Milne  v.  Leisler 

521 

Moof  V.  Roberts 

484,  485 

Milroy  t'.  Lord 

837 

Moore  v.  Booth 

1130 

Milsonv.  Day 

1055 

Moore  v.  Campbell 

389,  975 

Milward  v.  Forbes 

692 

Moore  v.  Culverhouse 

959 

Milward  v.  Hibbert 

990 

Moore  v.  Garwood 

63 

Milward  v.  Temple 

677 

Moore  v.  Kennard 

489 

Mima  Queen  r.  Hepburn 

508,  509 

Moore  v.  King 

902 

Minet  r.  Morgan 

419,  790 

Moore  v.  Met.  Ry.  Co. 

778,  842 

Minna,  The 

227 

Moore  v.  Moore 

181,  229,  837 

Minor  v.  Tillotson 

365 

Moore  u  Mourgue 

53,  54 

Minshall  v.  Lloyd 

399 

Moore  v.  Oastler 

337 

Mints  r.  Bethill 

422 

Moore  v.  Smith 

705 

Minty,  Re 

907 

Moore  v.  Whitehouse 

403 

Mires  ■i\  Solebay 

40 

Moorhouse  v.  Newton 

644 

Mitchell  V.  Crassweller 

252 

More  V.  Salter 

1554 

Mitchell  V.  Darley  Main  Coll.  Co. 

Moreau  v.  Carleton's  Trial               ]  173 

Errata 

Morewood  v.  Wilkes 

171 

Mitchell  V.  Homfray 

172 

Morewood  v.  Wood 

538,  544,  545. 

Mitchell  V.  Jenkins              42,  54,   141 

547,  1588 

Mitchell  V.  Lapage 

392 

Morgan  v.  Boys 

512 

Mitchell  V.  Thomas 

178,   179 

Morgan  v.  Brydges 

1225 

Miteheson  v.  Oliver 

227 

Morgan  v.  Chetwynd 

211 

Mobile,  The 

227 

Morgan  v.  Couchman 

707 

Mody  V.  Gregson 

1004 

Morgan  v.  Davies 

48 

Moftatt  'V.  Bateman 

207 

Morgan  r.  Griffith 

966 

Mohesh  Lai  v.  Mohunt  Bawan  Das  195 

Morgan  v.  Hatchell 

949 

Moilliet  I'.  Powell 

248 

Morgan  v.  Hedger 

348 

Moises  V.  Thornton 

1572 

Morgan  v.  Lond.  Gen.  Omnibus  Co. 

Mollett  V.  Brayne 

858,  862 

1007 

Mollett  V.  Wackerbath         1548,  1550 

Morgan  v.  Morgan 

514,   1574 

Molloy  V.  Kilby 

474 

Morgan  v.  Nicholl 

426 

Mollwo,  March  &  Co.  v.  Ct. 

of  Wards 

Morgan  v.  Pike 

880 

203 

Morgan  v.  Ravey 

206,  207 

Molton  V.  Camroux 

724 

Morgan  v.  Rolands 

929 

Molton  V.  Harris 

388 

Morgan  v.  Rowlands 

1456 

Moncrieff  v.  Reade 

251 

Morgan  v.  Sim 

8 

Mondel  v.  Steele 

463,  1452 

]\Iorgan  v.  Sykes 

873 

Money  v.  Jorden 

720,   721 

Morgan  r.  Thorne 

655,  1439 

Monkton  v.  Att.-Gen.      555, 

556,  557, 

Morgan  v.  Whitmore 

186 

560,  563,   564,  565,   566 

570,  572 

Morgan's  case 

1179 

574,  577 

Morgans  v.  Bridges 

725 

Monroe,  Bank  of,  v.  Field 

533 

IMoriarty  r.  Grey 

397 

Monroe  ■?'.  Twistleton 

782 

Moi'iarty  v.  Lond.  Chat 

&  D.  Rv.  Co. 

Monsel  v.  Lindsay 

1533 

696 

Montacute  v.  Maxwell 

885,  886 

Morley  v.  Attenborough 

1003 

Montague,  Ld.,  v.  Dudman 

1288 

Morley  v.  Morley 

174,  935 

Montague  v.  Montague 

1043 

Morley's,  Ld.,  case 

430,  432,  446 

Montague  i\  Perkins 

52,  1581 

Mornington  v.  Mornington                784 

Montefiore  v.  Guedalla 

1043 

Morrell  v.  Dickey 

1483 

Montefiori  v.  Montefiori 

721 

Morrell  v.  Fisher 

1040 

Montgomery  v.  Middleton 

62 

Morrell  v.  Frith 

63,  922,  925 

Montreal,  Bk.  of,  v.  Munster  Bk.       62 

Morrell  v.  Martin 

1427 

Montrose,  Peer. 

229,   1026 

Morrell  v.  Morrell 

18(1 

Moodie  v.  Bannister 

937 

Mo>-rell  ('.  Wootten 

1534 

Moody  V.  Rowell         1198,  1225,  15so, 

Morrice  v.  Swaby 

1533,   1537 

1584,   1590 

Morris  r.  Bethell 

319 

Moody  )".  Surridge 

988 

Morris  v.   Burdett 

701 

•       (28 

09) 

Ixxii 


TABLE  OF  CASES  CITED. 


Morris  r.  Davies 
Morris  r.  (ilyiin 
Morris  v.  Hannen 
Morris  r.  Harmer 
Morris  r.  Hauser 
Morris  r.  Miller 
Morris  v.  Parr 
IVIorrison  c.  Arnold 


PAGE 

129,  571 

891 

409 

1518 

.409 

191,  386.  732 

473 

490 


Morrison  v.  (len.  St.   Navig.  Co.  8 

Morrison  v.  Kelly  1275 

Morrison  v.  Lennard  1170 

IMorrison  r.  Martin  1039 

Morrison  v.  Univ.  Marine  Ins.  Co.  200 
•Morritt  v.  Douglass  901 

Morrogli  v.  I'ower  923 

Morsel).  Royal  661,  663 

Mortimers.  M'Callan  405,  533,  1358 
1364,  1365 
INIortimer  v.  Mortimer  674,  742 

Mortimer  v.  Shortall  970,  971 

ISIortimore  v.  Wright  213 

Morton  r.  Chandler  967 

Morton  v.  Copeland  355,  947 

Morton  v.  Tibbett  896,  900 

Morton  v.  Woods  12:5 

Moseley  ?\  Da  vies  541,  547,  557 

Moseley  v.  Hanford  980 

Moseley  v.  M' Mullen  293 

Moseley  Green  Coal  &  Coke  Co.  Lim., 

Re  1514 

Moss  V.  Ang.-Egyp.  Nav.  Co.  1447 

Moss  V.  Russell  206 

Mossam  v.  Ivy  501,  1518 

Mossop  V.  Eadon  404 

Mostyn  v.  Fabrigas  9,  67,  69,  1217 
ISIostyn  V.  Mostyn  1029 

Mostyn  r.   West  Mostyn  Coal  &  Iron 

Co.  796 

Motteram  r.  East.  Cos.  Ry.  Co.  1366, 
1411,  1412 
ISIouflet  V.  Cole  22 

Jlould  V.  Williams  1425,  1436,  1427 
Moule  V.  Brown  45 

Mounsey  v.  Burnhara  1566 

Mounson  v.  Bourn  25 

Mount  V.  Bogert  689 

Mount  ■;;.  Larhins  52,  1057 

Mountague  r.  Harrison  1131 

MountCord  v.  Harper  197 

IMountnoy  v.  Collier  126,  600,  602 

Mountstephen  v.  Brooke  654,  923 

Mountstephen  v.  Lakeman  882,  883 
Moylan  v.  Nolan  211 

]Moyle  V.  Jenkins  200 

Mozeley  v.  C'owie  241 

Muilman  v.  D'Equino  51 

Mulholland  v.  Killen  1437 

Mullaly  V.  Walsh  217,  218 

IMullen,  Re  902,  904 


PAGE 

Mullett  r  Hunt  1079,  1083,   1084 

Mullinor  r.  Florence  6,  1010 

Mullins  r.  Collins  136 

Mumford  r.  Gething  1015 

Muncey  v.  Dennis  1010 

Munday  v.  As])rey  877 

Mundy  v.  Asprey  877 

Munn  V.  Bakei'  1422 

Munn  ('.  G()dl)()ld  393 

Munro,  ex  parte  940 

Munro  r.  Do  Chemant  721 

Munro  v.  Munro  ,  227 

Munro  v.  Vandani  224 

Munroe  r.  Pilkington  1472,   1489 

Murchie  r.  Black  145,   146 

Murgatroyd  r.  Murgatroyd  339 

Murieta  v.  Wolfhagen  1578 

Murly  V.  M'Dermott  144 

Murphv  r.  Eoese  871 

Murphy  v.  Meredith  927 

Murphy  v.  Nolan  1057 

Murphy  r.  Sullivan  888 

Murray,  in  the  goods  of  222 

Murray  r.  Coster  689 

Murray  v.  Sheriffs  of  Dublin  1263 

Murray  v.  Gregory  384 

Murray  v.  Place   '  294,  1002 

Murray  v.  Mackenzie  957 

Murray  v.  Milner  562 

Murray  v.  Parker  970,  971 

Murray  v.  E.  of  Stair  967,  1559 

Murray  v.  Walter  1534 

Musgrave  v.  Emerson  596 
Mussumat  Cheetha  v.    Baboo   Miheen 

Lall  214 
Mutual  Loan  Fund  Ass.  v.  Sudlow  981 

Mutual  Society,  Re  1531 

Myers  v.  Defries  56,  57 

Myers  v.  Perigal  891 
Myers  v.  Sari                       988,  989,  991 

Myers  v.  Willis  227,  1512 

Myles  V.  Burton  Errata 

]\lVrick  V.  Daine  981 

Mytton  V.  Thornbury  542,  583 
Nadin  v.  Bassett  463,  464,  465,  468 
Nagle  V.  Shea                  384,  1569,  1571 

Naish  V.  Brown  364 

Napper  <;.  Sanders  217 

Nash  V.  Armstrong  973 

Nash  V.  Gilkeson  333 

Nash  V.  Hodgson  928,  930 

Nash  r.  Turner  1571 

Natchbolt  v.  Porter  861 

Naj'lor  !'.  Semmes  1252 

Neal  V.  Jay  1518 

Neal  V.  Wilding  573 

Neale  r.  Fry  1518 

Neale  r.  Parkin  700 

Nedbv  ;•.  Ncdby  173 


(2810) 


TABLE  OF  CASES  CITED. 


Ixxui 


PAGE 

Needham  v.  Bremner  1430 

Needhaiu  r.  Fraser  1083 

Needham  (.  Smitli  1184 

Neeley  c.  Lock  134 

Neil  V.  D.  of  Devonshire  551 

Neil  V    Neil  180 

Neile  v.  Jakle  707 

Neilson  v.  Harford  61 

Nelson,  Re  919 

Nelson,  Ld  ,  v.  Ld.  Bridport  67,  1215, 

1216 
Nelson  v.  Couch  1450 

Nelson  v.  Stocker  723 

Nelson  v.  Whittall  1575 

Nepean  v.  Doe  d.  Knight  219 

Neptunus  1420 

Nesham  v.  Selby  877 

Netherlands  Steam  Boat  Co.  t\  Styles, 

227 
Netherwood  v.  Wilkinson  1080 

Neve  V.  Pennell  959 

Nevil  V.  Johnson  427,  428 

Nevill  V.  Snelling  174 

Neville  v.  Wilkinson  721 

Nevin  v.  Drysdale  976,  1043 

Newall  V.  Elliott  1496 

Newberry  v.  Benson         •  622 

Newbould  c.  Coltman  1427 

New  British  Mutual  Invest. Co.  v.  Peed, 

1531 

Newburgh  r.  Newburgh  1343 

Newby  v.  Reed  223 

Newcastle,  D.  of,  v.  Broxt<)we  539 

Newcastle,  D.  of,  v.  Clark  144 

Newcastle,  D.  of,  v.  Kinderley        137 

Newell  V.  Radford  875 

Newell  y.  Simpkin  1285 

New  England  Bank  v.  Lewis  1471 

Newenham  c.  Smith  1021 

Newhall  v.  Holt  381 

Newham  r.  Raithby  1355 

Newington  v.  Levy  1449 

Newman  v.  Jenkins  218 

Newman  v.  Piercy  1039 

Newman  v.  Stretch  522 

Newry  v.  Ennisk.  Ry.  Co.  v.  Combe  128 

Newsam  v.  Carr  333,  337 

Newsome  v.  Coles  1421 

Newton  v.  Askew  1130,  1133 

Newton  r.  Belcher  709 

Newton  v.  Beresford  795 

Newton  r.  Blunt  1444 

Newton  r.  Chaplin  418,  419 

Newton  r.  Clarke  903 

Newton  V.  Constable  1130,  1131,   1133 

Newton  v.  YJWh  300 

Newton  v.  Harland  1058,   1059 

Newton  v.  Liddiard  709 

Newton  v.  Ricketts  169,  1222 


PAGE 

New  Windsor  case  666 

Nias  v.  Nortli.  &  East.  Ry  Co.  795, 1285 
Nichol  (;.  Godts  1004 

Nicholas  &  Freeman  v.  Binns  216 


Nicholle  v.  Plume 
NichoUs  V.  Dowding 


Nicliolls  r.  Downes 
Nicholls  V.  Goldsmith 
Nicholls  V.  Johnson 
Nicholls  V.  Osborn 
Nicholls  V.  Parker 
Nicholls  ('.  Walker 
Nichols,  In  re 
Nichols  V.  Webb 
Nicholson  IV  Bower 
Nicholson  v  Bradlield  Union 
Nicholson  r.  Mulligan 
Nicholson  V.  Revill 
Nicholson  r.  Smith 
Nicholson,  ex  p  ,  Re  AVillson 
Nickalls  v.  Merry 
Nickells  v.  Atherstone 
Nickolson  v.  Kuowles 
Nicoll  V.  Greaves 
Nightingal  v.  Devisme 
Nigotti  t\  Colville 
Niles  V   Brachett 
Noble  r.  Chapman 
Noble  v.  Durell 
Noble  V.  Kennoway 


898 
531,  655,  663, 
1196,  1197 
697 
613 
1556 
1023 
542,  557 
1427 
219 
613 
896,  899 
840 


862 


Noble  V.  Phelps  &  Willock 

Noble  ('.  Ward 

Noble  V.  Willock 

Noble  V.  Willock  &  Phelps 

Noble's  Trusts,  Re 

Noden  v.  Johnson 

Nodm  V.  Murray 

Noel  tJ.  Wells 

Nolan  v.  Copeman 

Nolan  V.  Gumley 

Norden  v.  Williamson 

Nordon  v.  Defries 

Norman  v.  Cole 

Norman  v.  Morrell 

Norman  v.  Phillips 

Norreys  v.  I'ranks 

N  orris  v.  Beach 

Norris  v.  Cooke 

Norris  v.  Cottle 

Norris  v.  Miles 

North  of  Eng.  Joint-Stock  Bk.  Co.,  Re, 

ex  p.  Gouthwaite  95 

North  of  Eng.  Joint-Stock  Bk.  Co.,  Re, 

ex  p.  Straffon's  Exors.  723 

North  German  Llovd  St.  Ship.    Co.  v. 

Elder  '  -227 

North-West.  Ry.  Co.  v.  McMichael  128 


1044 

1550 

689 

1105 

201 

,  863 

727 

49 

1340 

21 

1184 

248 

991 

200,  309,  990, 

1011 

921,  1463 

975 

921 

921,  1463 

1033 

266 

387 

1431,  1433 

1057 

951,  954 

1163 

1528 

968 

986 

896,  899 

1037 

1127 

870 

722 

530,  666 


(2811) 


Ixxiv 


TABLE  OF  CASES  CITED. 


I'AfiK 

Nortlicote  v.  Doughty  0'6U 

Northam  v.  Latouche  1319 

Northumberlaiul,  D,  of,  v.  Todd    1189 
>;orton  r.  J>aiett  90;> 

Norton  c.  JNU-lljouine  4G3,  464 

Norton  c   I'ettibone  683 

Norwich  &  Lowestoft  Nav.  Co.  r.Theo 
bald  1422 

Norwich,  Bishop  of,  c.  Pearse         1153 
Notor  r.  Brook.s  1006 

Nottidge  (-.  Prince  172 

Nottingham,   Guard  of   r.  Tomkinson 

817 
Novelli  V.  Rossi  1478,  1555 

Nowlan  v.  Ablett  49 

Nowlan  v.  Gibson  114,  1438,  1441,  1472 


Nugent  r.  Smith 

998 

Nunn  V.  Fabian 

828 

,  895 

Nunn's  Will,  Ke 

1033 

Nute's  case 

748 

Nye  V.  jMacdonald 

11 

Oakapple  (.  Copous 

701 

Oakeley  v.  Ooddeen 

359 

Oakes  v.  Hill 

1517 

Oakes  v  Turquand 

1393 

Oakley  v.  Monck 

215 

Oastler  v.  Henderson 

863 

Obicini  v.  Bligh 

1479 

O'Brien  v.  Lewas 

172 

O'Brien  v.  R. 

1167, 

1168 

O'Brien  v.  Shell 

869 

Ocean,  The 

228 

Ochsenbein  v.  Papelier 

1464, 

1474 

O'Connell  v.  Barry 

484 

OX'onnell  r.  Butler 

178 

O'Connell  v.  The  Queen 

589 

O'Connell's  case 

527 

O'Connor  v.  Majoribanks 

781 

,  782 

O'Connor  f.  Spaight 

888 

Odcll,  Re 

906 

O'Donnell  (.  O'Donnell 

22 

,  991 

O' Flanagan  *•.  Geoghegan 

1011, 

1109 

Ogden  V.  Beuos 

92 

Ogden  r.  Hesketh 

646 

Ogilvie  r.  Currie 

160 

Ogilvie  V.  Foljambe 

879 

Ogle  V.  Cook 

1573 

Ogle  r.  Ld.  Vane 

975 

Ogle  I'.  Norcliffe 

25 

O'Grady  v.  Corr 

622 

Okeden  r.  Clifden 

1019 

O'Leary  v.  Douglass 

914 

Olding,  Re 

905 

Olive  V.  Guin 

10 

Oliver  v.  Bartlett 

514 

Oliver  v.  Woodroffe 

951 

,  952 

Ollivant  v.  Bay  ley 

1005 

Olver  V.  Johns 

905 

O' Meagher  r.  0' Meagher 

905 

Omichund  r.  Barker 

Ommaney  r.  Stilwell 
O'Neill  V.  Allen 
O'Neill  I-   Bell 
O'Neill  r.  Read 
Onions  r.  Tyrer 
Onslow,  Re 


I'AfiE 

1174,  1175,  1177, 
1180,  1517 
220 
153 
995 
654 
919 
932 


Oppenheim  v.  White  Lion  Hotel  Co.  207 

Ord,  In  re 

O'Reilly,  Re 

Ormerod  v.  Chadwick 

Ormrod  v.  Huth 

O'Rorke  (■.  Bolingbroke 

O'Rourke  v.  Perceval 

Orr  V.  ]\Iorice 

Orrell  Colliery  Co.,  Re 

Orrell  v.  Coppock 

Orrett  r.  Corsei- 

Osborn  r.  Lond.  Dock  Co. 


1016 
1028 
166 
1003 
174 
880 
1569 
1470 
881 
590 
485,  1247, 
1254,  1255 
342,  362 
1471 


Osborn  r.  Thompson  341 

Osgathorpe  r.  Diseworth 
Osgood  V.  Manhattan  Co.  661 

Ostler  II.  Cooke  1469 

O'Sulhvan  v.  Burke  601 

Oswald,  In  re  179 

Ottawav  *■.  Hamilton  211 

Otter,  the  343 

Ougier  v.  Jennings  990 

Outhwaite  v.  Luntley  1549,  1559 

Outram  v.  More  wood  113,  114,  604, 
1438,  1440,  1442,  1450 
Overend,  Gurney  &  Co.  r.  Oriental  Fi- 
nance Corp.  982 
Owen  V.  Flack  696 
Owen  V.  Warburton  813 
Owen  V.  Wynn  1283,  1524 
Owings  V.  Wyant  386 
Oxford, Worcester,  and  Wolverhampton 
Rail.  Co.  ;;.  Scudamore  640 
Oxlade  v.  North-East.  Rail  Co.  486 
Pacey  v.  Lond.  Tramways  Co.  1528 
Pacific  St.  Nav.  Co.  v.  Lewis  240,  245 
Packard  v.  Richardson  872 
Paddock  v.  Forrester  678,  688 
Paddon  v.  Winch  803 
Padgett  V.  LavsTence  688 
Page  ?;.  Carew  1055 
Page  r.  Faucet  21,  27 
Page  V.  Homans  1580 
Pain  V.  Bee.ston  1235 
Paine  v.  Hall  178 
Paine  &  Lavton,  ex  parte  411,  1091 
514  !  Paine  v.  M' In  tier  983 
Paine  v.  Strand  Union  841,  842 
Painter  v.  Abel  707 
Palermo,  The  1528 
Palethorp  v.  Furnish  676 
(2812) 


TABLE  OF  CASES  CITED. 


Ixxv 


PAGE 

Pallikelagatha  Marcar  v.  Sigg  961 

Palmer  v.  Maclear  1206 

Palmer  i\  Newhall  1043,  1045 

Palmer  v.  Wright  1538 

Panton  v.  Holland  263 

Pauton  ('.  Williams  42,  43 

Papemlick  v.  Bridgwater  600,  603,  684 
Pardington  v.  South  Wales  Rail.  Co.  938 


Pardee  v.  O'Connor 
Pardoe  v.  Price 
Parfitt  V.  Lawless 
Paigeter  v.  Harris 
Parker,  In  re 
Parker  v.  Carter 
Parker  c.  Gordon 
Parker  v.  Hoskins 
Parker  r.  Ibbetsoa 
Parker  v.  M'Kenna 
Parker  v.  M'William 
Parker  v.  Morrell 
Parker  v.  Palmer 
Parker  v.  Potts 
Parker  v.  Staniland 
Parker  v.  Taswell 
Parker  v.  Wallis 
Parker  v.  Wells 
Parker  v.  Yates 


698 

3t)7 

172 

119 

185 

791 

46 

430,  1572 

196,  994 

423 

1194 

531,  532,  663,  664 
51 
224 
893 
852 
896 
1538 
798 


Parkhurst  v.  Lowten  1242,  1243,  1244, 

1248,  1250,  1251,  1253 

Parkhurst  v.  Van  Cortlandt  877 


Parkin  v.  Moon 
Parkins  v.  Hawkshaw 
Parkinson  v.  Lee 
Parkinson  v.  Townsend 
Parmenter  v.  Webber 
Parmiter  v.  Coupland 
Parmiter  v.  Parmiter 
Parr,  Ee 
Parr  v.  Cotchett 
Parrott  v.  Watts 
Parry  v.  Fairhurst 
Parry  v.  May 
Parry  v.  Nicholson 
Parsons  v.  Brown 
Parsons  v.  Carr 
Parsons  v.  Hancock 
Parsons  v.  Hayward 
Parsons  v.  Loyd 
Parsons  r.  Purcell 
Parsons  r.  Sexton 
Parteriche  v.  Powlet 
Partou  V.  Cole 
Parton  v.  Crofts 
Partridge  v.  Coates 
Partridge  v.  Scott 
Partridge  v.  Usborne 
Paske  V.  Ollat 
Pasley  v.  Freeman 


1197,  1224 

678,  792 

1004 

1463 

858 

66 

926 

919 

609,  610 

520 

240,  246,  253 

408 

1546 

372 

481 

737 

214 

108 

383 

1005 

9(i4 

375,  377 

389 

407 

145 

1454 


PAGE 

Patent  Type  Founding  Co.  v.  Walter  504 

Pater  v.  Baker  245 

Paterson  v.  Gandasequi  982 

I'aterson  c.  Hardacre  '  346 

I'aton  r.  Sheppard  185 

Patrick  t:  Shedden  1486 

Patrick.sou  t\  Patrickson  191 

Patten  v.  Poulton  182 

Patterson  v.  Becher  698 

Patterson  v.  Black  20 

Pattinson  v.  Luckley  1552 

Patton  ('.  Ash  197 

Patton  V.  Goldsborough  688 

Paul  V.  Cleaver  951 

Paul  V.  Meek  393 

Paul  i=. -Roy  1486 
Pauling  V.  London  &  North  Western 

Ry.  Co.  840,  844,  847 

Paull  ('.  Simpson  '                 866 

Pawsey  v.  Armstrong  203 
Paxton  r.  Douglas        1243,  1244,  1253 


Patent  Ty|ie  Founding  Co.  v.  Lloyd  504    I'eel,  Re 

(2813 


Paxton  V.  Popham  116,  967 

Payne  r.  Barker  7 

Payne  v.  Ibbotson  1203,  1205 

Payne  v.  Rogers  654 
Peaceable  v.  Watson            600,601,  602 

Peacham's  case  761 

Peacock's  Estate,  Re  1043 

Peacock  v.  Bell  27,  107 

Peacock  v.  Harper  361 

Peacock  v.  Harris  524,  694 

Peacock  v.  Monk  969 

Peacock  v.  Peacock  59,  203 

Pearce  v.  D.  397 

Pearce  v.  Hooper  1569 

Pearce  v.  Morrice  393,  394 

Pearce  v.  Ornsby  322,  323 

Peardon  v.  Underbill  31 1 

Pearn,  Re  906 

Pears  v.  Laing  607,  936 

Pearse  v.  Coaker  1449 

Pearse  v.  Grove  718 
Pearse  v.  Pearse           783.  784,  786,  796 

Pearson  ;;  Fletcher  791 

Pearson  v.  Isles  1083 

Pearson  v.  Le  Maitre  322,  324 

Pearson  r.  Pearson  906 

Pearson  r.  Scott  201 

Pearson  v.  Shaw  21 

Pearson  v.  Spencer  146 

Pearsons,  Re  904 

Pease  v.  Wells  951 

Peck,  Re  219 

Peckham  r.  Potter  685 

Pedler  r.  Paige  1567 

Pedley  v.  Dodds  1040 

178    Pedley  v.  Welleslev  1162 
933    Peek  r.  N.  Stafford  Ry.  Co.  880,  938,  977 

1022 


IXXVl 


TABLE  OF  CASES  CITED. 


PAGE 

Peel's  case 

V.iH-.i 

Peerless,  The 

9,  22(i 

Peile  i:  Stoddart 

ir>:j7 

Peirce  r.  Corf 

877,  f)4H 

Peisch  V.  Dickson 

9KH 

Pejepscot  Prop's  r.  Ransom  152 

Pelham  r.  Pickersgill  154 

Pell  V.  Daubeny  1059,  lOfiO 

Pelletreaii  r.  Jacksou  113,  514 

Pembroke,  Lady,  Re  910 

Pender  r.  Fobes  981 

Pendleton  v.  Rooth  G67 

Pendrell  r.  Pendrell  565 

Penfold  i:  Abbott  1001 

Penn  v.  Bibby  159:5 

Penn  i:  Jack  .  *       860 

Pennefather  v.  Pennefather  219 

Pennell  v.  Meyer  645 

Penney  v.  Gk)ode  15o4 

Penniman  v.  Hall  1193 

Penny  v.  Watts  1257 

Penrice  v.  Williams  1531 

Penruddock  v.  Hammond  796 

Pentreguinea  Coal  Co.,  Re  887 

People,  The,  r.  Holbrook  379 
People,  The,  v.  Mather        1244,   1247, 

1248,  1251,  1257 

People,  The,  v.  Matteson  1177 
People,    The,    ex.    rel.    Ordronaux    v. 

Chegaray  1166 

Peppiatt  V.  Smith  484 

Peppin  V.  Solomons  266 

Perchard  r.  Tindall  681 

Percival  v.  Caney  645 

Percival  v.  Nanson  595,  617 

Perfect  r.  Lane  174 

Perigal  v.  Nicholson  605 

Perkins  r.  Bradley  171 

Perkins  v.  Vanghan  322 

Perring  v.  Hone  1549 

Perry  t:  Davis  701 

Perry  v.  Fisher  248,  253 

Perry  v.  Fitzhowe  835 

Perry  v.  Gibson  1221 

Perry  v.  Meadowcroft  1430,  1432,  14(i4 

Perry  v.  Smith  797 

Perry  v.  Watts  251 

Perry's  case  1165 

Persse  v.  Persse  1128 
Perth  Peer.                          549,  575    1356 

Peru,  Rep.  of,  v.  Weguelin  1522 
Peruvian  Ry.  Co.  v.  Thames  &  Mersey 

Marine  Ins.  Co.  848 

Fetch  V  Lvon  678 

Petchell,  Re  914 

Peter  v.  Compton  888 

Peters  v.  Brown  923 

Peters  v.  Fleming  60 

Petersfield  case  666 


PAOE 

Petherhridge  v.  Ash 

!>13 

Petherick  r.  Turner 

531,6()4 

Peto  r.  Hague 

534 

Petrie  r.  Nuttall               122 

,  552,  1445 

Petty  r.  Anderson 

676 

Petty  r.  Styward 

176 

Peyton  r.  Harting 

480 

Peyton  r.  M'Derniott 

388 

Phayre,  Lessee  ol',  r.  Fahy 

58 

Phelps  V.  Foot 

514 

Phelps  r.  Prew 

419,  420 

Phene  r.  Popplewell 

863 

Phenc's  Trusts 

219 

Phenix  v.  Ingraham 

688 

Phihideli^hia  and   Trenton 

Ry.  Co.   V. 

Simpson 

1225 

Philimore  r.  Barry     ' 

876 

Philipps  V.  Philijjps 

237,  290 

Philips  V.  Hunter          1445, 

1485,  1489 

Philipson  r.  Chase 

413,   414 

Philipson  v.  Earl  of  Egremont        1464 

Philipson  r.  Hayter 

211 

Phillips  r.  Barker 

1021 

Phillips  r.  Berrick 

1454 

Phillips  r.  Bistolli 

896 

Phillips  V.  Briard 

990 

Phillips  V.  Bury 

1431 

Phillips  V.  Clagett 

660 

Phillips  V.  Cole                   588,  601,  685 

Phillips  r.  Eames 

1222 

Phillips  V.  Evans 

149ft 

Phillips  r.  Gibbs 

954 

Phillips  r.  Hall 

727 

Phillips  r.  Henson 

939 

Phillips  V.  Im  Thurn 

731 

PhilliiJS  IK  Irving 

5^ 

Phillips  V.  Kingtield 

1257 

Phillips  V.  Mullings 

173,  177 

Phillips  V.  Phillips 

1043 

Phillips  V.  Pound 

1126 

Phillips  V.  Routh 

485 

Phillips  r.  Ward 

1444 

Phillips  r.  Wimburn 

770 

I'jiillipsou  r.  Havter 

211 

Phil  1  potts  r.  I'h'illpotts 

115 

Phipps  '(;.  Hale 

909 

Phipps  V.  Parker 

1567 

Pickard  r.  Sears 

718,  724 

Pickering,  Re 

1535 

Pickering  v.  Appleby 

892. 

Pickering  r.  Dowson 

981 

Pickering  i\  Noyes 

419, 1253 

Pickering  v.  Pickering 

1535 

Pickett  V.  Packham 

214 

Pickford  r.  Gutch 

193 

Pickup  V.  Thames  Ins.  Co. 

224 

Pickton's  case 

1418,  1518 

Piercy's  case 

1518 

Piers  V.  Piers 

190 

(2814) 


TABLE  OP  CASES  CITED. 


Ixxvii 


Pierson  r.  Hutchinson 
Pierson  v.  Scott 
Pigg  i'.  Clarke 
Piggott  r.  Green 
Pigot  V.  Cubley 


PAGE 

403 
201 

185 

183 

1009 


Pigot's  case        1548,  1554,  1556,   1557 

Pigott  r.  Holloway  1204 

Pike's  case  1171 

Pilgrim,  Re  1087,  1095 
Pilgrim  v.  Southampton  &  Dorchester 

Ey.  Co.  643 

Pilkington  v.  Eiley  302 

Pillar  v.  Llynvi  Coal  Co.  939 

Pilsworth  ('.  Mosse  915 
Pirn  i:  Currell  538,  542,  551,  553, 1437 

Pinches  v.  Harvey  955 

Pinney  v.  Pinney  1353 

Pipe  '(,'.  Fulcher  550 

Piper  V.  Chappell  8,  9 

Pirie  v.  Iron  464 

Pitcher  v.  King  1053,   1054 

Pitman  v.  Maddox  612 

Pitman  i\  Woodbury  880 

Pitt  r.  Chappelow  729 

Pitt  r.  Coomes  1128 

Pitt  V.  Shew  51 
Pittou  r.  Walter           1335,   1338,   1504 

Pitts  r.  Beckett  389 

Pizarro,  The  130,  137 

Placker  v.  Gonsalus  688 

Planche  v.  Braham  64 

Plant  V.  Kendrick  1534 

Plant  V.  M'Ewen  664 
Plant  ('.  Taylor  158,  564,  566 
Piatt  V.  Att.-Gen.  of  N.  S.  Wales  228 
Plaxton  V.  Dare                 400,  542,  549 

Playne  v.  Scriven  902 

Plenty  v.  West  914 

Plevins  v.  Downing  975 

Plimmer  v.  Sells  676 

Plowes  V.  Bossey  129,  817 

Plumer  v.  Brisco  188,  1571 
Plummer  v.  Woodburne        1474,   1485 

Plunkett  V.  Cobbett  322,  814 

Plunkett's  Estate,  Re  1033 

PocDck  r.  Billing  687 

Pocock  r.  Pickering  953 

Podmore  r.  \\Tiatton  181,  403 

Pogson  V.  Thomas  1040 

Pohl  V.  Young  485 

Polden  V.  Bastard  146 

Pole  '(•.  Leask  720 

Polet;.  Rogers  342 

Polini  V.  Gray  617,  1417 

Pollack  V.  Pollack  467 

Pollard  V.  Bell  1479,  1482 

Pollard  V.  Scott  550,  1505 

Pollock  V.  M'Alpin  226 

Pollock  V.  Pollock  177 

(281 


PAGE 

Pollock  V.  Stables  200,  201 

Pollock  V.  Stacy  858 

Pomeroy  v.  Baddeley  1193 

Pond  V.  Dimes  464 

Ponsford  v.  O'Connor  465 

Ponsibrd  v.  Swaine  808 

Pontefract,  ex  parte  1471 

Pontifex  v.  Bignold  106 

Poole  r.  Bridges  519 
Poole  V.  Dicas 


612,  613,  615,  617, 
618,  619 

Poole  V.  Gould  1136 

Poole  V.  Griffith  1505 

Poole  V.  Hobbs  953 

Poole  ('.  Huskinson  154 

Poole  V.  Palmer  640 

Poole  ('.  Richardson  1209 

Pooley  V.  Driver  20;> 

Pooley  V.  Goodwin  168 

Pooley  V.  Harradine  981 

Pope  V.  Andrews  678 

Pope  V.  Askew  1581 

Pope  V.  Biggs  294 

Porter  v.  Cooper  1335 

Porter  v.  Weston  141 

Porter's  Trusts,  Re  1365 

Portland,  D.  of,  v.  Hill  549 

Portmore,  Ld.,  r.  Taylor  174 

Postlethwaite  v.  Freeland  196 

Potez  V.  Glossop  186,  60ft 

Pothonier  v.  Dawson  1009 

Pott  V.  Eyton  203 

Pott  V.  Todhunter  970 

Potter  V.  Baker  183 

Potter  V.  Deboos  196 

Potter  V.  Duffield  875 

Potter  ('.  Nicholson  953 

Potter  V.  Rankin  1058 

Potter  V.  Webb  333 

Potts  V.  Durant  582.  583 

Potts  r.  Nixon  114,  118 

Potts  V.  Smith  97 

Potts  V.  Surr  173 

Poulsum  V.  Thirst  300 

Poultney  v.  Holmes  858 
Poulton  V.  Lond.  &  S.West.  Ry.  Co. 

842 

Pound  V.  Wilson  12 IS 

Pouusett  V.  Fuller  1000 

Pountney  t'.  Clayton  145 

Powell,  Re  908 

Powell  V.  Bradbury  264 

Powell  r.  Dillon  874 

Powell  r.  Divett  1548,   1550 

Powell  i\  Edmunds  981 

Powell  V.  Ford  1580 

Powell  V.  Hellicar  837 

Powell  V.  Hibbert  294 

Powell  V.  Hodgetts  530 
5) 


Ixxviii 


TABLE  OF  CASES  CITED. 


PAGE 

PoAvell  V.  Jossop  b9i 

Powell  r.  Laytuii  1423 

I'owfll  c.  Milhurn  134 

Powell  c  Powell  913 

Powell  V.  Smith  103 

Power  r.  Reeves  110 

Power  r.  Webber  1077 

Powers  V.  Bathurst  154 

Powis  Barony  1346 

Powi.s  V.  Smith  54 

Powys  r.  iVIanstield  868 

Povser  r.  Minors  1455 

Priinoc  v.  Sympson  922,  926 

Pratt  V.  Hanbnry  245 

Pratt,  ex  p.,  Re  Hayman  1105 

Pratt  c.  Pratt  419,  1524,   1526 

Prentice f.  Elliott  294 

Prcscott  r.  Buflery  1514 

President,  The  228 

Prestney  v.  Corp.  of  Chester  1521 

Preston  i\  Carr  795,  796 

Preston  v.  Merceau  964,  9S1 

Preston  I'.' Peeke  109,1453 

Prestwick  v.  Poley  680 

Price,  Re  1087,  1095 

Price  c.  CaAer  951.  955 

Trice  v.  Dewhurst       1474,   1475,  1479 

1484 
Price  r.  Dyer  974 

Price  V.  Harwood  725 

I'rice  r.  Hewett  723 

Price  V.  Hollis  668 

Price  V.  Ley  970 

Price  r.  Littlewood  1511 

Price  V.  Powell  917 

Price  (•.  Price  173,  214,  917,  1539 

Price  V.  Ramsay  702,  703 

Price  V.  Richardson  872 

Price  V.  Torrington  612,  615,  617 

Price  r.  Woodhonse  554 

Price  r.  Worwood  698,  699 

Prichard  v.  Powell  541,  544,  545 

Prideaux  v.  Bnnnett  1005 

Prideaux  r.  Criddle  45 

Priestley  v.  Fowler  1006 

Priestman  v.  Thomas  1447 

Prince  r.  Blackburn  1571 

Prince  v.  Samo         644,  649,  650.  746, 

1261 
Prince  Henry,   In  re  1182 

Prince  Peter  Oldenburg,  Re  1517 

P.  of  Wales  Life  Ass.  Co.  v.  Harding 

842 
Princess  Charlotte,  The  1512 

Princeton,  The  22(5 

Prinsep  &  E.  India  Co.  v.  Dyce  Sombre 
178,  216,  347,  1429 
Prist%vick  v.  Poley  680 

Pritchard  v.  Bagshawe  670 


Pritchard  v.  Brown 
Pritchard  v.  Draper 
Pritchard  v.  Foulkes 
Pritchard  v.  Hitchcock 
Prischard  v.  Walker 
Pritt  V.  Fairclough 
Proc.  Gen.  v.  Williams 
Proctor  r.  .Jones 
Proctor  r.  Lainson 
Prole  c.  Wiggins 
Prosser  v.  Gwillim 
Prosser  v.  Wagner 
Protector,  The 
Proudfoot  V.  Montefiore 
Provis  V.  Reed 


PAGE 

869 
531,  664 

802 

1422,   1423 

188,  695 

200,  614 

562,  564 

897 
431,  665 
115,  116 

6S6 
1431 

227 

778,  997 

1262 


Prowse  V.  The  European  &  Amer. Steam 

Shipping  Co.  9,  226 

Prudential  Ass.  Co.  v.  Edmond.s       218 

Prudential  Mutual  Ass.  Co.  v.  Curzon 

1501 
Prudham  v.  Phillips  1464,  1465 

Prudhomme  i\  Eraser  250 

Pruen  v.  Cox  943 

Pryor  r.  Pryor  909 

Pryor  v.  Swain  e  951 

Puddephatt,  Re  907 

Pugh  V.  Robinson  25 

Pugh  &  Sharman's  case  1092 

Pujolas  V.  Holland  336 

Pulbrook  V.  Lawes  895 

Pullen  V.  Snelus  297 

Pullen  r.  AVhite  363 

Pulley  r.  Hilton  1359 

Pulsford  V.  Richards  720,  721 

Purcell  r.  Macnamara  1312,  1422 

Purdon  v.  Ld.  Longford  59 

Purdon  r.  Purdon  931 

Putnam  v.  Lewis  736 

Pyer.  Butteriield     480,  481,  485,  1242 
Pver  V.  Carter  146 

Pyke  V.  Crouch  423,  428,  1442 

Pym  V.  Campbell  967 

Pym  V.  Lockyer  1043 

Pyne,  Re  1054 

QlARTERMAN   V.    CoX  1185 

Quartz  Hill  Co.,  ex  p.  Young       1188, 

1222 

Quebec  Marine  Ins.  Co.  v.  Commer.  Bk. 

of  Canada  997 

Queen.  The  224 

Queen's,  The,  case  75,  77,  78,  80,  368, 

369,  649,  746,  779,  1149,  1175, 

1178,  1180.  1231,  1235.  1241,  1260, 

1261,  1263 

Queen's  Proctor  v.  Fry  1358,  1366 

Quennell  r.  Turner  1039,  1041 

Quick  r.  Quick  181 

Quick  r.  Staines  734 

Quilter  i:  Heatly  1521 


(2816) 


TABLE  OF  CASES  CITED. 


Ixxix 


PAOE 

PAGE 

Quilter  r.  Jorss 

405 

R.  V.  Barry 

315 

Quincej  r.  Sharpe 

927 

R.  v.  Bartlett 

756,  779 

Quinn  r.  Butler 

920 

R.  V.  Barton 

162 

R.'s  Trusts,  Re 

817 

R.  i\  Basingstoke 

381 

R.  V. 

161,  285 

R.  V.  Bate 

760 

R.  V.  Abergavenny  Union                  828 

R.  V.  Bateman 

775 

R.  I'.  Abergwilly 

508,  569,  625 

R.  V.  Bates 

440 

R.  i:  Abingdon 

364 

R.  V.  Bathwick     112 

,  1162, 

1163,  1164 

R.  V.  Ackroyd 

758 

R.  V.  Bayley 

2^6 

R.  L-.  Adams 

161 

R.  V.  Beale 

127 

R.  V.  Addei'bury 

East 

662 

R.  V.  Beaney 

22,  270 

R.  V.  Addis 

832 

R.  V.  Beard 

104,  139 

R.  V.  Adey 

1253 

R.  V.  Beardsall 

1511 

R.  V.  Aickles 

379 

415,  1358  1509 

R.  V.  Beokwith 

364 

R.  V.  Allen 

127 

,  191,  348,  367 

R.  V.  Bedfordshire 

538,  545 

R.  V.  Allgood 

1283 

R.  r.  Bedingfield 

519,  629 

R.  r.  Allison 

164,  386 

R.  v.  Bedingham 

697 

R.  v.  All  Saints 

564 

R.  v.  Beeston 

425,  426,  439,  442 

R.  V.  All  Saints, 

South 

ampton        166, 

R.  v.  Beeton 

318 

1468 

R.  V.  Beezley 

1222,  1223 

R.  V.  All  Saints, 

Worcester  1163,  1164, 

R.  V.  Bell 

770 

1242 

R.  V.  Bellamy 

1335 

R.  V.  Alnion 

136 

R.  11.  Benson 

163 

,  .367,  1311 

R.  V.  Ambergate 

&c., 

Ry.  Co.        1288 

R.  V.  Bentley 

771 

R.  V.  Ambury 

1072 

R.  V.  Berenger 

1198 

R.  V.  Anderson 

1173,  1331 

R.  V.  Berigan 

756,  1461 

R.  V.  Andrews 

277 

R.  r.  Bernadotti 

630 

R.  V.  Antrobus 

543 

R.  r.  Berriman 

285 

R.  V.  Appleby 

706,  780 

R.  V.  Berry 

1154,  1170 

R.  v.  Archer 

209 

R.  r.  Betts 

58 

R.  V.  Arniitage 

827 

R.  V.  Beverley 

1283 

R.  V.  Arnold 

757,  758.  765 

R.  V.  Bigg 

838 

R.  V.  Arundel 

137 

R.  v.  Bignold 

363 

R.  V.  Ashburton 

169 

R.  V.  Bingham 

1311 

R.  r.  Ashton 

632 

R.  (:.  Bingley 

279 

R.  ('.  Aspinall 

109.  340 

R.  V.  Birch 

1335 

R.  r.  Aston 

320 

R.  V.  Birchenough 

1458 

R.  V.  Atkins 

694 

R.  V.  Bird 

272 

R.  V.  Atwood 

830 

R.  V.  Birdseye 

315 

R.  t\  Austen 

430 

R.  V.  Birmingham 

565,  591,  601,  602 

R.  V.  Austin 

99 

R.  V.  Biss 

284 

R.  V.  Avery 

784,  796,  799 

R.  v.  Bjornsen 

134 

,  163,  1512 

R.  V.  Azire 

1165 

R.  V.  Blackburn 

756,  761 

R.  V.  Babb 

1284,  1288 

R.  r.  Blake 

526 

,  528,  1132 

R.  V.  Baines 

166 

R.  V.  Blakemore   115 

,  1429. 

1438.  1442 

R.  V.  Bagshaw 

1468 

11.  V.  Bland 

286 

R.  r.  Baker 

627 

R.  r.  Blandy 

86,  516,  517,  630 

R.  V,  Baldry 

748,  760 

R.  v.  Bleasdale 

313 

R.  V.  Ball 

326,  1197 

R.  r.  Bliss 

542,  546,  603 

R.  V.  Balls 

316 

R.  V.  Bodle 

1222,  1223 

R.  V.  Banks 

350 

R.  V.  Bolton 

1426, 

1427,  1467 

R.  V.  Ban  nam 

283 

K.  V.  Bonner 

629,  630 

R.  V.  Barker 

340,  408 

R.  V.  Bond 

769 

R.  t".  Barnard 

830,  1228 

R.  r.  Borrett 

694 

R.  V.  Barnes 

260, 

695,  1073,  1353 

R.  r.  Bos  well 

756,  761 

R.  V.  Barnett 

1075 

R.  V.  Boucher 

408 

R.  V.  Barnsley 

697 

R.  V.  Boulter 

824 

R.  V.  Barrett 

189,  1073 

R.  V.  Bowden 

755 

R.  c.  BarrovF 

364 

R.  V.  Bowen 

106.  109 

(2817) 


Ixxx 


TABLE  OF  CASES  CITED, 


PAGE 

PAGE 

K.  V.  Bowman 

1472 

R.  V.  Can  well 

272 

R.  V.  Boyes           830,  1243, 

1247,  1248, 

R.  !;.  Carew 

944 

1253 

R.  V.  Carey                      832,  1051,  1121 

E.  r.  Bradlaugh 

109 

R.  f.  Cargenwen 

219 

R.  V.  Braintree 

399 

R.  V.  Carlile 

108,  364 

R.  V.  Braithwaite 

823 

R.  r.  Carnarvonshire 

697 

R.  I'.  Bramley 

818,  1162 

R.  V.  Carr 

645 

R.  V.  Brandretli 

526 

R.  r.  Carrol 

440 

R.  V.  Biangan 

1275 

R.  V.  Cart 

758 

R.  V.  Brasier                     508 

1171,  1172 

R.  V.  Carter                      327,  1319,  1514 

E.  V.  Brayncll 

775 

R.  v.  Carty 

769 

R.  V.  Brecknock  &  Aberg.  Can.  Co.  1289 

R.  V.  Casbolt 

99 

R.  V.  Brennan 

415 

R.  V.  Cass 

749,  759 

R.  V.  Brettell 

64 

R.  V.  Cassidy 

1222 

R.  V.  Brewer 

795,  1240 

R.  r.  Castle  Morton 

373 

R,  v.  Brice 

1183 

R.  V.  Castleton 

398,  402 

R.  r.  Briggs 

319 

R.  V.  Catesby 

165,  166 

R.  V.  Brightside  Bierlow, 

311,  5.52 

R.  V.  Cator 

1590 

R.  r.  Brisby 

1495 

R.  V.  Cavendish 

135 

R.  V.  Bristol  &  Exeter  Ry. 

Co.        1289 

R.  V.  Cellier 

761,  762 

R.  V.  Brittleton 

210,  1166 

R.  r.  Chadderton 

569 

R.  V.  Britton 

775 

R.  r.  Champney 

823,  824 

R.  r.  Broadbemston 

165 

R.  V.  Champneys 

1458 

R.  i:  Brogan 

768 

R.  V.  Chapman 

1197,  1223 

R.  c.  BroDimicb 

694 

R.  V.  Charlbury 

1471 

R.  V.  Brooke 

1222 

R.  V.  Cbarlesworth 

1246,  1248 

R.  V.  Brookes 

270 

R.  V.  Chatham 

697,  69H 

R.  V.  Brooks 

99,  210 

R.  V.  Chawton 

961 

R.  V.  Brown         21,  153,  326,  800,  1257 

R.  r.  Cheadle 

978 

R.  V.  Browne                   372 

,  1337,  133S 

R.  V.  Cherry 

774,  1249 

R.  V.  Brownell 

1081 

R.  ('.  Chester 

1281 

R.  V.  Bryan 

753 

R.  v.  Chester,  Bp.  of 

1465 

R.  r.  Buckingbam,  Js. 

1286.  1288, 

R.  v..  Chester,  Sheriff  of 

1288 

1426,  1467 

R.  V.  Cheverton 

753,  759 

R.  v.  Buckley                      426,  591,  614 

R.  v.  Cbidley 

775 

R,  V.  Budd 

214 

R.  V.  Christian 

256,  1318 

R.  V.  Bull 

431,  1222 

R.  V.  Christie 

364, 629 

R.  r.  Bullard 

811 

R.  V.  Christopher      372, 

373,  385,  439, 

R.  V.  Bullock 

270,  276 

494,  1241 

R.  r.  Burbage 

10^6 

R.  V.  Clapham 

1507 

R.  V.  Burdett 

1223 

R.  V.  Clare 

819 

R.  V.  Burgiss 

1075 

R.  V.  Clark 

279,  285 

R.  V.  Burke 

78,  1234 

R.  V.  Clarke       339,  340, 

442,  517,  735, 

R.  i\  Burley 

756 

1262 

R.  V.  Burridge 

23 

R.  r.  Cleary 

445,  628 

R.  V.  Burt 

330 

R.  r.  Clement 

1082 

R.  V.  Bury  St.  Edmunds 

625 

■R.  v.  Clements 

441 

R.  V.  Busb 

285 

R.  r.  Clewes 

747,  753,  757 

R.  ;•.  Butcher 

777 

R.  r.  Clint 

1471 

R.  V.  Buttle 

1246 

R.  r.  Cliviger 

1163 

R.  r.  Butterwick 

1065 

R.  V.  Cluderoy 

1061,  1065 

R.  V.  Buttery 

1433, 1435 

R.  V  Clure 

340 

R.  r.  Cadogan,  E.  of 

1288 

R.  V.  Coadv 

67 

R.  V.  Cain 

755,  777 

R.  r.  Cobden 

314 

R.  V.  Callagban 

632 

R.  v.  Cockburn 

432,  435 

R.  V.  Calvert 

439 

R.  V.  Cockcroft 

340,  1232 

R.  V.  U.  of  Cambridge 

27 

R.  V.  Cockin 

161 

R.  V.  Campbell 

284 

R.  V.  Cohen 

350 

R.  V.  Archbp.  of  Canterbury  1026,  1480 

R.  V.  Colclough 

326 

(2818) 


TABLE  OF  CASES  CITED. 


Ixxxi 


PAGE 

PAGE 

R.  V.  Cole 

313 

R.  V.  Dean 

340 

R.  V.  Coleman 

1590 

R.  V.  Dean  of  St.  Asaph 

34.  65 

R.  V.  Coleorton 

697,  698 

R.  V.  De  Berenger 

24,  1417 

R.  V.  Colerne 

944 

R.  V.  Deelev 

267,  1152 

R.  V.  Colley 

1194 

R.  V.  De  laMotte 

416,  1257 

R.  V.  Collier 

315 

R.  V.  Dendy 

267 

R.  V.  Colmer 

775 

R.  V.  Denio 

398 

R.  r.  Com.  of  Sews,  for  T 

.  Hamlets 

R.  V.  Dent 

1217 

1286 

R.  V.  Derby 

944 

R.  r.  Compton 

270,  1460 

R.  V.  Derbyshire 

944 

R.  r.  Coney 

831 

R.  V.  Derrington 

756 

R.  V.  Connell 

1457 

R.  V.  De  Salvi 

1458 

R.  V.  Conning 

1331 

R.  V.  Despard 

833 

R.  V.  Conolly 

210 

R.  r.  Devlin 

756 

R.  V.  Cook 

1193,  1250 

R.  V.  Dewhurst 

770 

R.  V.  Cooke        104,  256, 

260,  326,  812, 

R.  V.  Dillon 

371 

1060 

R.  V.  Dilmore 

425,  442 

R.  V.  Cooper                161 

749,  752,  753 

R.  V.  Dingier 

438 

R.  r.  Coote 

773,  774 

R.  V.  Dingley                       753 

756,  761 

R.  V.  Cope 

613,  619 

R,  V.  Dixon               103,  136, 

799,  1253 

R.  V.  Coppard 

1338 

R.  r.  Doherty 

752,  1165 

R.  v.  CoppuU 

381 

R.  r.  Doolin 

1256 

R.  r.  Corden 

166 

R.  V.  Doran 

388 

R.  V.  Cork,  Js. 

1153 

R.  i\  Dossett 

327 

R.  V.  Cornelius 

1288 

R.  V.  Douglas            448,  449, 

467,  1330 

R.  V.  Cottingham 

1471 

R.  V.  Dowlin 

492 

R.  V.  Cotton      314,  545, 

553,  555,  1496 

R.  r.  Dowling 

276 

R.  V.  Court 

752,  700 

R.  V.  Downer 

800 

R.  IK  Courtney 

757 

R.  V.  Downham 

408 

R.  V.  Cousens 

1060 

R.  V.  Downing 

750 

R.  V.  Cox  &  Raijton 

Errata 

R.  i\  Downshire,  Dow.  March  of     277 

R.  V.  Coyle 

679,  705 

R.  V.  Doyle 

756 

R.  V.  Cradoek 

164 

R.  V.  Drage 

327 

R.  r.  Cramp 

831 

R.  ?'.  Drew               ♦ 

749,  759 

R.  V.  Crediton 

1507 

R.  i\  Drummond 

625,  628 

R.  !'.  Creevey 

139 

R.  i\  Drury 

1472 

R.  ('.  Cresswell 

164 

R.  V.  Duffin 

104 

R.  V.  Crick 

277 

R.  tK  Dukinfield 

613 

R.  I'.  Crockett 

629 

R.  ^\  Dulwich  College 

1025 

R.  V.  Croke 

1469 

R.  V.  Dunboyne,  Ld. 

99 

R.  V.  Crondall 

697 

R.  V.  Duncombe 

1206 

R.  V.  Cross 

1248 

R.  r.  Dungey 

1458 

R.  V.  Cro.ssfield 

740 

R.  V.  Dunmurry 

285 

R.  r.  Croucher 

435,  441 

R.  V.  Dunn                           315 

,  327,  750 

R.  V.  Crowther 

439 

R.  V.  Dunne 

1274 

R.  r.  Cruise 

1273 

R.  V.  Dunsford 

64 

R.  r.  Cruse 

105,  210 

R.  r.  Dunstan 

58 

R.  r.  Culkin 

.      281 

R.  V.  Durham 

830 

R.  r.  Culpepper 

402 

R.  V.  Durkin 

1072 

R.  V.  Curgenwen 

219 

R.  V.  Durore 

268 

R.  r.  Curtis 

1240 

R.  V.  Dwyers 

768 

R.  r.  Daman 

166 

R.  V.  East.  Count.  Ry.  Co. 

1289 

R.  V.  Dann 

1458 

R.  V.  East  Fairley 

397 

R.  V.  Davie 

988 

R.  V.  East  Mark 

154 

R.  r.  Davis 

332,  771,  773 

R.  V.  East  Winch 

697 

R.  r.  Dawber 

830 

R.  V.  Eaton 

277 

R.  V.  Dawson 

271 

R.  V.  Ebrington 

1462 

R.  V.  Day 

440 

R.  V.  Edgar 

745 

R.  r.  Deacon 

821,  822 

R.  V.  Edge 

348 

F   LAW  OF  KVID. — V.   I. 


(2819) 


JXXXll 


TABLE  OF  CASES  CITED. 


PAGE 

PAGE 

R.  V.  Edmonton 

143 

R. 

?'. 

Forester 

629,  U30 

R.  r.  Edmunds 

425,  432,  70() 

R. 

V. 

Forster 

325 

R.  V.  Edmundson 

340 

R. 

r. 

Forsyth 

20,  279 

R.  V.  E.hvanl.s   r2G7, 520,1 

228, 1241, 12:)0 

\{. 

V. 

Foster 

519,  747,  766 

R.  V.  Edwin.stowe 

G97 

R. 

r. 

Prance 

440 

R.  V.  Ejiorlon 

318 

R. 

V. 

Francis 

32() 

R.  V.  Elderahaw 

127 

R. 

v. 

Francklin 

1417,  1418 

R.  V.  Elderton 

4 

R. 

V. 

Eraser 

1 152 

R.  V.  Ellel 

1471 

R. 

V. 

Frederick 

1160 

R.  V.  Ellicombe 

388,  411,  416 

R. 

V. 

Freeman 

351 

R.  1!.  Elliott 

283 

R. 

r. 

Fret  well 

104 

R.  V.  Ellis    308,313,314, 

318,756,  1152 

R. 

r. 

Friend 

1086,  1242,  1243,  1250 

R.  V.  I-:! worthy 

41G 

R. 

r. 

Frost    260, 

285,  1075,  1168,  1183, 

R.  V.  Ely,  Bp.  of 

1287 

1184 

R.  V.  Emmons 

1072 

R. 

r. 

Fullarton 

260 

R.  V.  Enoch 

749,  760 

R. 

r. 

Fuller 

163 

R.  ti.  Entrehman 

1180 

R. 

V. 

Fulllord 

58 

R.  V.  Eriswell   424,  431, 

438,  446,  509, 

R. 

r. 

Furnivul 

272 

543,  r,G\) 

R. 

r. 

Furscy 

319,   405 

R.  V.  Erith 

56-<,  569 

R. 

V. 

Gadbury 

331 

R.  V.  Errington 

438,  629 

R. 

v. 

Gallagher 

830,  1152 

R.  V.  Esdaile 

1592 

R. 

r. 

Galvin 

440 

R.  V.  Esop 

103 

R. 

i: 

Garbctt 

776,  1242,  1247,  1254 

R.  V.  Essex,  Js. 

1495 

R. 

V. 

Gardiner 

823 

R.  V.  Evans 

271,  284 

R. 

V. 

Gardner 

694.  1418 

R.  V.  Evenwood  Barony 

1471 

R. 

V 

Garner 

314,  749,  759 

R.  V.  Exall 

161,  163 

R. 

V. 

Gaunt 

1495 

R.  V.  Exeter 

601,  602 

R. 

V 

Ganz 

1329 

R.  V.  Exeter,  Treasurer  of                1064 

R. 

V. 

Gay 

631 

R.  V.  Fagent 

629,  631 

R. 

V. 

Gaynor 

823,  826 

R.  V.  Farie 

327,  1451 

R. 

i: 

Gazard 

808 

R.  V.  Fanning 

191 

R. 

V. 

Geach 

104 

R.  ?!.  Farler 

831,  832 

R. 

i". 

Geering 

314,  327 

R.  V.  Farley                783 

784,  795,  800 

R. 

V. 

Genge 

80 

R.  1'.  Farrell 

435 

R. 

V. 

Gibbons 

750,  752,  787 

R.  V.  Farrington 

101 

R. 

V 

Gibney 

754,  756,  757 

R.  V.  Feargus  O'Connor 

276 

R. 

V 

Gibson 

1433 

R.  V.  Fearshire 

372,  770 

R. 

r 

Giddins 

316 

R.  V.  Felton 

762 

R. 

r 

Gilham 

754,  775,  787,  1180 

R.  V.  Fennell 

759 

K. 

r. 

G  ilbrass 

1072 

R.  V.  Ferrers,  E.  of 

1166 

R. 

V. 

Gillis 

756,  773,  775 

R.  V.  Ferry  P"ry stone 

508,  569 

R. 

r 

Gillow 

106 

R.  V.  Finacane 

315 

R. 

r 

Gilmore 

1457 

R.  V.  Firth 

313 

R. 

r. 

Gilson 

38S 

R.  V.  Fisher 

770 

R. 

r. 

Gird  wood 

66 

R.  V.  Fitzgerald              631,  1358,  1510 

R. 

V 

Gisburn 

1185 

R.  V.  Fitzsimons 

379 

R. 

V 

Gisson 

1458 

R.  V.  Flaherty 

384 

R. 

V. 

Glassie 

1160 

R.  V.  Flannagan 

'Errata 

R. 

V. 

Gleed 

1164 

R.  V.  Flatley 

1222 

R. 

V. 

Glynne 

1495,  1496 

R.  V.  Fleming 

749,  759 

K. 

r. 

Goddard 

630 

R.  V.  Fiemming 

438,  446 

R. 

r. 

Goldshede 

774 

R.  V.  Fletcher 

747 

R. 

r. 

Goldsmith 

109 

R.  V.  Flintshire 

979,  1021 

R. 

V. 

Goodere 

1193 

R.  V.  Folkes 

316 

R. 

r 

Gocdfellow 

435 

R.  V.  Fontaine  Moreau 

1446.  1447 

R. 

r. 

Goodwin, 

189 

R.  J'.  Forbes 

326,  439 

R. 

V. 

Gordon 

189,  397,  1338,  1547 

R.  V.  Ford 

1240 

R. 

V 

Gordon,  Li 

.  G.    520.  1168,  1242, 

R.  V.  Fordingbridge 

190,  398 

(28 

20) 

1243 

TABLE  OF  CASES  CITED. 


Ixxxiii 


PAGE 

PAGE 

R.  V.  Gould 

163,  777 

R. 

V 

Hay 

789 

R.  V.  Grady 

4:]9 

R. 

V 

Hay,  Dr. 

221 

R.  V.  Graham 

267,  280 

R. 

V 

Hayes 

36.i 

R.  V.  Grant 

1495 

R. 

V 

Haynes 

276 

R.  V.  Gray 

316,  326,  627 

R. 

V 

Hay  ward 

629,  800 

R.  V.  Great  Bolton 

1471 

K. 

r 

Hazell 

163 

R.  V-  Great  Cantield                            27'J 

K. 

V 

Hazy 

348,  307 

R.  t:   Green         o2G 

,  755,  757,  758,  705 

R. 

V 

Healey 

268 

R.  V.  Greenaway 

1051,  1081,  1121 

J^. 

V 

Hearn 

749,  755,  708 

R.  V.  Greene 

1417 

K. 

V 

Hearne 

747 

R.  V.  Gregory 

28:i 

K. 

V 

Heath 

li7;j 

R.  V.  Grillin 

190,  754,  777,  789 

U. 

V 

Hebden 

113,  1442 

R.  V.  Griffitlis 

759,   1240 

R. 

?' 

Hedges 

1200,  1201 

R.  V.  Grimwood 

1359 

R. 

r 

Hecsom 

3!  4,  435 

R,  V.  Groombridge 

127 

R. 

V 

Helling 

160,  107 

R.  V.  Grove 

280 

R. 

r 

Hendei-son 

14.57 

R.  V.  Grundon 

1430,  1431,  1436 

R. 

r 

Hendon 

593 

R.  V.  Guinea 

1204 

U. 

r 

Hen  wood 

313 

R.  V.  Gully 

20 

R. 

r. 

IFcrefordshire,  Js 

1274 

Jt.  V.  Gumble 

259,  280 

R. 

r 

Herringt;)n 

1495 

R.  V.  Gurney 

1183 

R. 

r 

Herstmjnceaux 

888 

R.  V.  Guteh 

136,  779 

R. 

r 

Hervey 

1168 

R.  v.  Guthrie 

272 

R. 

r 

Hewett 

749,  752,  754 

R.  V.  Guttridge 

432,  517 

R. 

r 

Hewins 

256,  260 

R.  V.  llagan 

327,  430 

R. 

r 

Heydon 

1-288 

R.  V.  Haines 

768 

R. 

?' 

Hickling 

1427,  1431,  1436 

R.  V.  Hains        1318,  1319,  1336,  1353, 

R. 

r 

Hickman 

208 

1304 

R. 

V 

Higgins 

716,  747 

R.  V.  Hale 

162 

R. 

r 

Highlield 

774 

R.  V.  Hall 

533,  747,  756,  770 

R. 

r 

Higson 

766 

R.  r.  Halliday 

1163 

R. 

r 

Hill 

104,  261,  1163 

R.  V.  Hammond  Pa 

ge                        142.5 

R. 

r. 

Hillam 

774,  1249 

R.  V.  PI  amp 

411 

R. 

V 

Hinckley 

165,  400 

R.  V.  Handcock 

1244 

R. 

r 

Hind 

623 

R.  V.  Han  kins 

410,  799 

R. 

V. 

Hinley 

315 

R.  V.  Hanson 

101 

R. 

r 

Hinxman 

770 

R.  V.  Hapgood  &  Wyatt                    273 

R. 

■(' 

Hirst 

706,  770 

R.  V.  Harborne 

135,  220 

R. 

V 

Hodge 

89 

R.  V.  Harding 

760 

R. 

r. 

Hodgkiss 

330,  1222 

R.  V.  Hardwick 

530,  531,  661,  662, 

R. 

r. 

Hodgson         286, 

340,  1232,  1210 

606.  752 

R. 

r 

Hogg 

284,  432 

R.  V.  Hardy      328, 

526,  529,  530,  809. 

R. 

r. 

fJblbrook 

137,  779 

810,  1204,  1224 

R. 

V 

Hoi  den 

12,23,  1210 

R.  V.  Hare 

824 

R. 

r 

Holl 

1246 

R.  V.  Hargrave 

831 

R. 

V 

Hollingberry 

269 

R.  t'.  Harriugworth 

1566 

R. 

V 

HoHond 

276 

R.  V.  Harris       IGl, 

325,  327,  332,  373, 

R. 

r. 

Holmes 

760,  1171 

441,  759, 

760,  769,  826,  1223 

R. 

V. 

Holmes  &Furness  340,  1231,  1232 

R.  V.  Harrison 

326.  432,  446,  1285 

R. 

V. 

Holt   20,  28,  105, 

326,  1418,  1419 

R.  V.  Hartington  Mid.  Quart.        1434, 

R. 

V. 

Holv  Trinity,  Hull                     377 

1463 

R. 

V. 

Hood 

1160 

R.  V.  Harvey 

139,  349,  435,  1468 

R. 

r. 

Hook 

85!6 

R.  V.  Haslingfield 

1344 

R. 

V. 

Hooper 

770 

R.  V.  Hastings 

830 

R. 

V. 

Hopes 

7o8 

R.  V.  Hatfield 

143 

R. 

V. 

Home 

303,  364 

R.  V.  Haughton 

115,  1437,  1473 

R. 

r. 

Home  Tooke 

704.  1199,  1580 

R.  r.  Hawes 

1507 

R. 

V. 

Hostmeu  of  Newcastle  1284,  1287 

R.  V.  Hawkins 

134,  348 

R. 

V. 

Hough 

325 

R.  V.  Haworth 

379,  416,  417,  775 

R. 

V. 

Houlton 

1161,  1165 

(2821) 


Ixxxiv 


TABLE  OF  CASES  CITED. 


PAGE 

PAGK 

B.  V.  Howard 

188 

R.  V.  King                     1287, 

1358,  1365 

R.  V.  Howell 

629,  630 

R.  V.  Kinglake 

1253 

R.  V.  Howes 

753 

K.  V.  Kingsclere 

1471 

R.  V.  Hubbard 

630 

R.  V.  Kingston,  Duch.  of 

702,  1431, 

R.  V.  Hucks 

30,  65 

1446, 

1462.  1464 

R.  V.  Huct 

770 

R.  V.  Kingston             315,  7^ 

19,  750,  759 

R.  V.  Hughes            209, 

281, 

318,  1318 

R.  V.  Kinloch,  Sir  A.  Gordon          1199 

R.  V.  Hulcott 

166,  1468 

R.  V.  Kinloch 

1170 

R.  V.  Hull 

99 

R.  r.  Kinsey 

1075 

R.  V.  Hulme 

1246 

R.  V.  Kitson                          388,  410,  416 

R.  V.  Humphries 

416 

R.  V.  Knaptoft 

1463 

R.  V.  Hunt 

104 

328 

,  386,  527 

R.  r.  Knill 

826 

R.  r.  Hunter 

791 

R.  V.  Knollys 

25 

R.  V.  H untie V 

1458 

R.  V.  Koops 

1331 

R.  r.  Hurley"^ 

367 

R.  r.  Laindon 

978 

R.  V.  Hutchins      115,  1386,  146:2,  1472  j 

R.  i\  Lallement 

260 

R.  r.  Hutchinson 

026 

R.  V.  Lamb 

770 

R.  V.  Hyde 

440 

R.  ('.  1  am1je 

766 

R.  V.  lies 

372,  1423 

R.  v.  Lambeth 

94  4 

R.  V.  Ingham 

278,  281 

R.  V.  Lancashire 

1471 

R.  V.  Ingram 

210 

R.  V.  Landulph 

141 

R.  V.  Ings 

406 

R.  V.  Langbridge 

440 

R.  V.  Isle  of  Ely 

23 

R.  V.  Languiead 

161 

R.  V.  Jackson 

270, 

826,  1152 

R.  V.  Langlon                     191,  386,  1202 

R.  V.  Jacobs 

372,  770 

R.  r.  Lark  in 

260 

R.  V.  Jagger 

1165 

R.  r.  Laugher 

749,  760 

R.  V.  James 

1228 

R.  V.  Lavey 

58 

R,  V.  Jarrald 

276 

R.  V.  Lavin 

757,  1194 

R.  V,  Jarvis  105,  163 

,  348,  7G0,  830,  S.U 

R.  V.  Layer              770,  822 

1250,  1257 

R.  V.  Jeffries 

27,  1303 

R.  V.  Leatham 

1246,  1253 

R.  V.  Jellyman 

1165 

R.  V.  Ledbetter 

426 

R.  V.  Jenkins 

62f 

,  749,  778 

R.  V.  Lee            425,  440,  44' 

I,  823,  1232 

R.  V.  Jennings 

270,  1460 

R.  V.  Leeds 

1471 

R.  V.  Jeyes 

1001,  1062,  1064 

R.  V.  Leicester  Js. 

1281,  1282 

R.  V.  John 

629 

li  V.  Leigh                542,  55 

[,  553,  1437 

R.  t.  Johnson     197, 

397 

439 

,  440, 517, 

R.  r.  Leonard 

271 

768, 

769,  1064 

R.  V.  Leominster 

944 

R.  t\  Johnston 

756 

R.  V.  Levy                          278,  315,  1384 

R   V.  Johnstone 

268 

R.  r.  Lewen 

1064 

R.  V.  Joliffe 

423,  491 

R.  V.  Lewis     105,  326,  773, 

1001,  1065, 

R.  f.  Jones      20,  24 

,  88, 

105 

135,  188, 

1228,  1250 

194, 

219, 

268 

315,  327, 

R.  V.  Ligbtfoot 

1154 

450, 

49  >, 

746 

747,  749, 

R.  V.  Lilleshall 

214 

759, 

760, 

770 

800,  830, 

R.  r.  Lin  gate 

753 

831,  1062, 

1073,  1075 

R.  V.  Little 

166,  1219 

R.  V.  Jordon 

127,  363 

R.  V.  Liverpool,  Mayor  of 

1468 

R.  V.  Kain 

363 

R.  V.  Llanfaethly 

418 

R.  V.  Kea 

818 

R.  V.  Llangunnor 

978 

R.  V.  Kealey 

268 

R.  V.  Lloyd 

626,  755 

R.  V.  Kelly 

281 

R.  V.  Lockhart 

777 

R.  V.  Kelsey 

1064 

R.  V.  Lolley 

1476 

R.  V.  Kenilworth 

399,  1431 

R.  V.  Lond.  &  North- West. 

Ry.  Co.  1429 

R.  V.  Kenny 

210 

R.  V.  Lond.  &  St.  Kath.  D 

ck  Co.  1296 

R.  r.  Js.  of  Kent 

943 

R.  r.  Lond.  &  South  Coast  Ry  Co.    696 

R.  V.  Kerne 

G94 

R.  V.  Long 

314,  757 

R.  V.  Kerr 

756 

R.  V.  Long  Buckby 

166,  168 

R.  V.  Kiddy 

439 

R.  V.  Loom 

285 

R.  V.  Kilminster 

99 

R.  V.  Loughran 

1136 

E.  V.  Kimber 

767 

R.  V.  Lowe 

1305 

(2822) 


TABLE  OF  CASES  CITED. 


Ixxxv 


PAGE 

PAGE 

E.  V.  Lower  Heyford 

593 

R.  V.  Milnes 

1312 

R.  V.  Lubbenham 

1507 

R.  V.  Milton 

550 

R.  V.  Lucas 

1282,  1283 

R.  V.  Minton 

268,  269 

R.  V.  Luc'khurst 

749,  754,  758 

R.  V.  Mitchell 

188,  272,  1460 

R.  V.  Luffe                      20,  129,  817,  H18 

R.  V.  Mockfbrd 

162 

R.  ('.  Lumley 

135,  21 G 

R.  V.  Mogg 

327 

R.  V.  Lunny 

517 

R.  V.  Moore 

749,  770 

R.  v.  Lydeard  St.  Lawrence            1121 

R.  V.  Moores 

832 

R.  e.  Lyon 

277 

R.  V.  Moors 

387 

R.  V.  M'Anerney 

285 

R.  V.  Morgan 

385,  629 

R.  V.  Macclesfield 

1471 

R.  V.  Morris  166,  279, 

1311,  1458,  1461 

R.  V.  Macclesfield,  Ld. 

1242 

R.  V.  Morse 

768 

R.  V.  M'Cafiterty 

529 

R.  1-.  Mortlock 

414,  416 

R.  V.  M'Conkey 

281 

R.  V.  Morton 

398,  749,  759 

R.  V.  M'Cue 

144(1 

R.  V.  Mosey 

777 

R.  V.  M'Culley 

283 

R.  V.  Moslcy 

281,  629,  630 

R.  V.  M' Donald 

1318 

R.  V.  Mothersell 

1359,  1514 

R.  V.  M' Govern 

770 

R.  V.  Mudie 

824 

R.  V.  Machen 

1472,  1495 

R.  V.  Murlis 

1221 

R.  r.  M'Hugh 

773 

R.  V.  ISIurphy     104,  188,  526,  528,  629, 

R.  V.  Mackay 

629 

1193,  1197,  1225, 

1260,  1458,  1580 

R.  V.  Mckenua 

268,  525 

R.  V.  Muscot 

824 

R.  V.  Macplierson 

269 

R.  V.  Musson 

142 

R.  V.  M'Phersod 

272 

R.  V.  Mytton 

542,  583 

R.  V.  xVIagill 

757,  832 

R.  V.  Napper 

276 

R.  V.  Main  waring     99, 

164,  386,  1364, 

R.  V.  Neal 

832 

1368 

R.  V.  Nether  Hallam 

1473 

R.  V.  Mallett 

765 

R.  tJ.  Netherthong 

112.  585 

R.  V.  Mallory 

Errata 

R.  V.  Neville 

260,  732,  735 

R.  V.  Manning 

209 

R.  V.  Newboult 

287 

R.  V.  Mansfield  129,  135,  571,  759,  817 

R.  V.  Newman        700 

,  780,  1193,  1338 

R.  V.  Mariquita  &  New 

Granada  ilin- 

R.  V.  Newton 

188,  384,  440 

ing  Co. 

1294 

R.  V.  Nicholas 

508 

R.  V.  Marley 

271 

R.  V.  Nicholls 

327 

R.  V.  Marsden 

361 

R.  r.  Nicolas 

629 

R.  V.  Marsh 

812 

R.  V.  Nisbett 

326 

R.  V.  Marshall 

431 

R.  V.  Noakes 

832 

R.  V.  Martin     281,  331, 

340,  505,  1231, 

R.  V.  North  Bedburn 

401 

1358,  1511 

R.  V.  Northleach    & 

Whitney   Roads 

R.  )'.  Mashiter 

984 

Trustees 

1289 

R.  V.  Mathews 

269 

R.  V.  North  Pelherton 

1507 

R.  V.  IMay 

1495 

R.  V.  Norton 

285 

R.  V.  Mayhew 

823 

R.  V.  Norwich  Road  Trustees          1468 

R.  V.  Mazagora 

104 

R.  V.  Nuneliani  Courtney                   508 

R.  V.  Mead 

626,  1166 

R.  V.  Nute 

754 

R.  V.  Medley 

136 

R.  V.  O'Coigly 

1250 

R.  V.  Megson 

517,  629 

R.  V.  O'Connell  380,  386,  526,  528,  810, 

R.  V.  Merceron 

775 

1203 

R.  V.  Merch.  Tailors'  Co 

1282,  1283, 

R.  r.  Oddy 

327 

1284 

R.  r.  O'Donnell 

1075,  1152,  1153 

R.  V.  Merthyr  Tidvil 

374 

R.  IK  Ogilvie 

267 

R.  V.  Middlehurst 

269 

R.  V.  Oliver 

272 

R.  V.  Middlesex 

944 

R.  V.  Olney 

978 

R.  r.  Middlesex  Js. 

1276 

R.  ?'.  Omant 

435 

R.  V.  Midlam 

1281 

R.  V.  O'Neill 

277 

R.  V.  Millard 

325,  326 

R.  V.  Onslow  and  Whalley              1136 

R.  V.  Miller 

20,  441.  1460 

R.  V.  Orchard 

288,  1223 

R.  V.  Mills 

749,  759 

R.  V.  O'Reilly 

757 

R.  V.  Milne 

1183 

R.  V.  Osborne 

440,  517,  518 

(2823) 


Ixxxvi 


TABLE  OF  CASES  CITED. 


PAGE 

PAGE 

R.  V.  Osman 

6;i0 

R.  V.  Preston,  Ld. 

1272 

K.  V.  Otway 

268 

R.  V.  Price 

210,  1240 

K.  V.  Oulton 

214 

R.  V.  Pr  ingle 

21,  24 

K.  V.  Owen            65, 

208,  277,  771,  773 

R.  V.  Pritehard 

260 

K.  V.  Oxford 

26.S,  281 

R.  V.  Puddifoot 

283 

K.  V.  I'acker 

770 

\i.  V.  I'lirefoy 

446 

ii.  V.  Padstow 

376 

R.  V.  Purnel'l 

1288 

li.  K  Page 

372,  1338 

U.  V.  Pye 

268 

K.  V.  I'ain 

166 

R.  V.  Oualter 

629 

\i.  V.  Paine 

438,  1060 

R.  V.  Queen's  Cty. 

Js. 

648,  11 5:  J 

K.  r.  Painter 

439 

R.  /;.  Quigley 

518 

R.  V.  Palmer 

1210 

R.  V.  liadley 

268 

R.  V.  Patenter 

737 

R.  V.  Ramsey 

137,  779 

a.  V.  Parker         99, 

440.  749,  824,  827, 

R.  V.  Ramsbottom 

1352 

1262 

R.  V.  Ramsden 

1205 

R.  V.  Parratt 

749,  7.59 

R.  V.  Ratclitfe  Cul 

ey 

768, 

1420,  1446 

R.  I'.  Parry 

316,  1273,  1458 

R.  V.  Rawdeu 

374,  398 

R.  V.  Parsons 

1384 

R.  V.  Read 

827 

R.  V.  Partridge 

161,  75i) 

R.  V.  Reader 

1472 

R.  V.  Payne 

1152 

R.  V.  Reading 

768 

817,  818,  1248 

R.  V.  Peace 

286 

R.  '('.  Rcaney 

630 

R.  V.  Peacock 

434 

R.  i\  Rearden 

313 

R.  V.  Pearce 

318,  1166 

R.  V.  Reason       63 

1,  632,  760,  769,  770 

R.  r.  Peat 

1162 

R.  V.  Reed 

372,  770 

R.  V.  Pedley 

1208 

R.  V.  Rees 

18£ 

,  756,  1064 

R.  r.  Peel 

630,  1241 

R.  V.  Reeve 

760 

R.  V.  Pegler. 

1242 

R.  V.  Reg.  of  Deeds  for  Middlesex  949 

R.  V.  Penge 

1471 

R.  V.  Reid 

776 

R.  V.  Pel  kin 

1171 

R.  V.  Reilly 

1337 

R.  V.  Perkins 

629 

R.  r.  Rho(ies 

1358,  1510 

R.  I'.  Perranzabuloe 

1021,  1471 

R.  V.  Richards 

276 

440,  753,  758, 

R.  V.  Perry 

1160 

1064 

R.  V.  Petcherini 

526 

R.  r.  Richardson 

327,  810 

R.  V.  Petrie 

154 

R.  V.  Rickman 

162 

R.  V.  Philips 

127 

R.  ('.  Ridley 

276,  277 

R.  V.  Phillips 

268,  326,  770 

R.  V.  Rigg 

446 

R.  V.  Phillpott 

1352 

R.  V.  Riley 

441 

R.  V.  Philp 

104 

R.  V.  Ring 

1081 

R.  V.  Pick  ford 

66 

R.  V.  Rishworth 

562 

R.  V.  Picton 

67,  1215,  1216 

R.  i\  Rivers 

372,  771 

R.  V.  Piddlehinton 

402 

R.  i\  Roadley 

127 

R.  V.  Pike 

628 

R.  V.  Roberts 

188, 

334 

,  827,  1323 

R.  'V.  Pikesley 

767,  771 

R.  V.  Robey 

1065 

R.  V.  Pilgrim 

1087 

R.  r.  Robins 

340,  1232 

R.  r.  Pilkington 

195 

R.  V.  Robinson  67. 

284,: 

527, 

1072,  1248, 

R.  r.  Pitcher 

1228 

13 

35,  1 

337, 

1338,  1387 

R.  r.  Pitts 

285 

R.  V.  Roche 

765 

,  776,  1486 

R.  V.  Plant 

1458 

R.  V.  Roddam 

1087 

R.  V.  Pluraer 

197 

R.  V.  Roden 

314 

R.  ?'.  Plummer 

438 

R.  V.  Roebuck 

326 

R.  V.  Pollard 

209 

R.  V.  Rogers 

348 

R.  V.  Ponsonby 

4 

R.  V.  Rook 

817 

R.  V.  Pook 

520 

R.  V.  Rookwood 

1257,  1258 

R.  V.  Potter 

439 

R.  V.  Rooney 

319,  1075 

R.  r.  Pountney 

749,  750 

R.  V.  Ro.sa  Rue 

752 

R.  r.  Povey 

9,  1214 

R.  r.  Rosewell 

1196,  1243 

R.  V.  Powell 

152 

R.  V.  Rosier 

753 

R.  r.  Pressly 

766,  770 

R.  V.  Rosser 

1173 

R.  V.  Preston 

166,  1174 

R.  V.  Row 

752 

14) 


TABLE  OF  CASES  CITED. 


Ixxxvii 


PAGE 

PAGE 

R.  V.  Rowland 

1152 

R.  V.  Shelley 

1282,  1288 

R.  V.  Rowley 

492 

R.  V.  Shepherd 

279,  749,  760 

R.  V.  Rowtou 

328,  330 

R.  V.  Sheppard 

104 

R.  V.  Rudd 

1160 

R.  V.  Sherman 

1152 

R.  V.  Rndge 

1228,  1459 

R.  i\  Shipley 

lOG 

R.  V.  Russell 

58 

R.  V.  Shott 

1459 

R;  v.  Russell,  Ld.  J. 

1079 

R.  V.  Shrimpton 

331 

R.  V.  Ruston 

1170 

R.  ('.  Sidney  Westley 

13W7 

R.  V.  Ryan 

105 

R.  V.  Sinmionds 

1222 

R.  V.  Ryland 

273 

R.  V.'  Simmonsto 

384 

R.  V.  Ryle 

468 

R.  r.  Simons 

232,  739,  757 

R.  r.  Rymer 

206 

R.  r.  Sinip.son 

23.  749 

R.  V.  Rymes 

260 

R.  V.  Sippet 

■  756 

R.  V.  Rvton 

112,  585 

R.  V.  Sirrell 

327 

R.  V.  Sadler 

1053 

R.  V.  Skeen  &  Freeman 

1245 

R.  V.  Saffron  Hill 

397,  398 

R.  i\  Slaney 

1242 

R.  ti  St.  Andrew,  Pershore 

195 

R.  V.  Slator 

1246 

R.  V.  St.  Anne,  Westminster  1470,  1472 

R.  V.  Slaughter 

750 

R.  V.  St.  Asaph,  Dean  of 

34,  65 

R.  V.  Slawstone 

944 

R.  V.  St.  George 

1260,  1467 

R.  V.  Sleemaa     ' 

749,  751,  754 

R.  V.  St.  George,  Bloomsbury         1467 

R.  V.  Sleep 

.350 

R.  V.  St.  Giles 

1572,  1579 

R.  V.  Slogget 

774 

R.  V.  St.  Giles-in-the-Fields              697 

R.  V.  Sloman 

1080,  1081 

R.  V.  St.  John 

276 

R.  r.  Smallpiece 

1285 

R.  V.  St.  Kathrine 

1507 

R.  V.  Smart 

318 

R.  V.  St.  Martin's,  Liecester  378,  1202, 

R.  V.  Smith  G6,  104,  209,284,  325,  .326, 

1204 

425,  439,  631,  771,  ' 

99,  1160,  1335, 

R.  V.  St.  Mary,  Lambeth 

1434,  1471 

1337,  1446 

R.  V.  St.  Marylebone 

190,  1282 

R.  r.  Smithies 

779 

R.  V.  St.  Mary  Magdalen 

165 

R.  i\  Somersetshire  Js. 

1467 

R.  V.  St.  Mary,  AVarwick 

613 

R.  V.  Sourton 

817 

R.  V.  St.  Mauriee 

23 

R.  V.  South  Holland  Drainage        1469 

R.  I'.  St.  Michael's 

768 

R.  V.  Southamjiton 

944 

R.  r.  St.  Pancras 

1437,  1473 

R.  V.  Sow 

702,  1463 

R.  V.  St.  Paul,  Covent  Garden  169,  170 

R.  r.  Spencer 

750,  1312 

R.  V.  St.  Weonard's 

277 

R.  r.  Spicer 

283 

R.  f.  Salisbury 

890 

R.  ('.  Spilsbury 

629,  755,  769 

R.  r.  Salt 

325 

R.  r.  Stafford 

1207 

R.  t'.  Salter 

328 

R.  V.  Staffordshire  Js.   1268,  1281,  1282 

R.  V.  Sansom 

767,  770 

R.  V.  Stain  forth 

165,  166 

R.  V.  Savage                       38^ 

,  432,  1217 

R.  V.  Stamper 

119 

R.  V.  Scaife          430,  432,  433,  434,  631 

R.  V.  Stanley  cum  Wrenthorpe         697 

R.  V.  Seallan 

629,  632 

R.  V.  Stanton 

1462 

R.  w.  Scammonden 

970,  978 

R.  V.  Staple  Fitzijaine 

381 

R.  V.  Schlesinger 

1208 

R.  r.  Stapleton 

209 

R.  V.  Scott             774,  1026, 

1248,  1347 

R.  ('.  Steel 

1170 

R.  V.  Searle 

1212 

R.  V.  Stephens 

136 

R.  r.  Sedgeley 

64 

R.  V.  SteiihenSon 

435,  441 

R.  V.  Sellers 

630 

R.  r.  Steptoe 

747 

R.  V.  Serjeant                1160, 

1161,  1165 

R.  ?•.  Stevenson  and  Coulter            1152 

R.  r.  Serva 

1180 

R.  V.  Steventon 

276,  277 

R.  V.  Sewell 

1517 

R.  V.  Stewart 

1331 

R.  V.  Sexton 

755,  765 

R.  I'.  Stoke  Golding 

401 

R.  V.  Shaftesbury 

1248 

R.  V.  Stoke-upon-Trent 

079,  994 

R.  '/).  Shaw      755,  757,  823, 

1335,  1423 

R.  r.  Stokes 

1240 

R.  V.  Sheehan 

830,  832 

R.  r.  Stone 

484,  525 

R.  r.  Sheen 

284 

R.  r.  Stonyer 

314 

R.  V.  Sheering 

1061 

R.  V.  Stourbridge 

399 

R.  V.  Shellard 

1238,  1240 

R.  V.  Stourton 

562 

(2825) 


Ixxxviii 


TABLE  OF  CASES  CITED. 


PAGE 

Strahan  1-245 

Strand  Board  of  Works     141,142 
Stretch  1079,  1080 

Strijip  701),  770 

Stroner  1223 

Stroud  284 

Stubbs  830.  831 

Sturge  259 

Suddis  1431 

Sullivan  1153 

Sulls  286 

Summers  268 

Surrey  944 

SutclifTe  744 

Sutton  4,  208,  542,548,1173,1416 
Swatkins  22,  749,  757 

Sweeny  284 

Sweudsen  330 

Tait  455 

Tancock  '  14G0 

Tanner  214 

Tarrant  766,  768,  770 

Tavener  325 

Taylor  749,  751,  1064,  1178,  1222 
Teal  1142 

Tew  1195 

Thanet,  Earl  of  808 

Thistlewood  355,  381,  406 

Thoman  279 

Thomas     316,  439,  751,  759,  766, 
1064,  1320,  1457 
Thompson  281,  435,  749,  758 

Thompson  &  others  1159 

Thompson  &  Simpson  1160 


Thornton 

Thring 

Thurscross 

Thurtell 

Tinckler 

Toakley 

Tolson 

Tomlinson 

Tooke 

Toole 

Torpey 

Torness 

Tower 

Towey 

Townsend 

Treble 

Treharne 

Trenwvth 

Trevelii 

Trowbridge 

Trueman 

Tubbv 

Tuffs" 

Tuberfield 


755,  756,  757,  758 
1335,   1338 
1507 
777 
628,  630 
364 
1384 
281 
1337 
285,  760 
209 
166 
1282,  1283 
823 
189 
1549 
278 
189 
363 
697 
316 
775 
799 
330 


R.  V. 

R.  V. 
R.  v. 
R.  V. 
R.  V. 
R.  V. 
R.  i: 
R.  V. 
R.  r. 
R.  r. 
R.  V. 
R.  v. 
R.  r. 
R.  V. 
R.  V. 
R.  V. 
R.  r. 
R.  r. 
R.  r. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  V. 
R.  r. 
R.  V. 
R.  V. 
R.  V. 

R.  V. 

R.  v. 

R.  V. 

R.  V. 

R.  V. 

R.  V. 

R.  V. 

R.  V. 

R.  V. 

R.  V. 

R.  V. 

R.  V. 

R.  V. 

R.  r. 

R.  V. 

R.  V. 
R.  V. 

R.  i: 


R.  V. 
R.  r. 
R.  V. 
R.  V. 
R.  r. 


PAGE 

Tfirner     281,  329,  330,  332,  354, 
355,  706,  778,  1312,  1429,  1446 
Turweston  269 

Tutdiin  65 

Twyning  135 

Tyler  752 

Tylney  799 

Tynims  2C0 

Udall  65 

Uezzell  277 

Ulner  441 

Unkles  744 

Upchurch  749,  759 

Upper  Boddington    419,  790,  792 
Upton  Gray  159,  165 

Upton-on-Seyern  26-*,  276 

Van  Butchell  629,  6:50 

Vandercumb  272,  312,  1273,  1457 


Vane 

Varlo 

Vaughan 

Verelst 

Vernon 

Vickery 

Vidil 

Vincent 

A^irrier 

Voke 

Wade 

AVain  Wright 


822 

1025 

821,  1193 

188 

749 

1081 

436,  438 

259,  515,  1222,  1433 

821 

327 

1170 

520 


Wakefield  687,  1162,  1165 

Walker   285,  435,  518,  774,  1427, 
1462 
Walkley  747,  750 

AVall  431,  446 

Wallace  20,  139,  140 

Walsh  439,  759 

AValter  137,  768 

Ward  58,  315,  1336 

Wardle  268 

AVardroper  210 

AVarickshall  777 

AVarman  281 

AVarner  755 

AVarringham  748,  749 

AVarwickshire  944 

AVashbrook  1465 

AVaters  109,  281,  284,  285 

AVatkins  770 

AVatkinson  806 

AVatson  162,  328,  387,  406,  526, 
527,  528,  529,  530,  704,  770,  809, 
812,  822.  1169,  1183,  1184,  1198 
1228,  1255,  1257,  125-^,  1262 
Watts  440 

AVaverton  277 

Waver  tree  545 

AVeaver  1365,  1368 

Webb  773,  1142,  1160,  1193 


(2826) 


TABLE  OF  CASES  CITED. 


Ixxxix 


PAGE 

R.  r.  Weljstcr 

2(jO 

K.  r.  Wfdderburn 

821 

li.  V.  Weeks 

325 

R.  V.  Wel))orn 

629 

R.  V.  Welch 

381 

R.  V.  Wcllaud 

283 

R.  V.  Wei  lei- 

439,  770 

R.  V.  Wellings 

435 

R.  V.  AVclls 

832 

R.  V.  Weltnn 

259,  285,  441 

R.  V.  Wenham 

1399 

R.  V.  West,  Dr. 

1286 

R.  V.  Westbury 

944 

R.  V.  Western 

259 

R.  V.  Westley 

259 

R.  V.  Wheater 

774,  775 

R.  V.  Wheatland 

826 

R.  V.  Wheeley 

372,  771 

R.  V.  Wheelock 

1021,  1471 

R.  V.  Whelam 

1236 

R.  V.  Whiley 

326 

R.  V.  Winston 

165 

R.  1-.  Whitbread 

1222 

R.  V.  Whitchurch 

165 

R.  r.  White  117,  133,  1169,  1175,  1178 

R.  v.  Whitehead 

1184 

R.  V.  Whitehouse 

1165,  1166 

R.  V.  Whitley  Lower 

662,  666 

R.  V.  Whitworth 

630,  631 

R.  V.  Wick  St.  Lawrence 

1021,  1431, 

1471,  1473 

R.  V.  Wickham 

271,  978 

Jt.  V.  Widdop 

774 

R.  V.  Widecombe  in  the  Moor        1471 

R.  V.  Wigan 

697 

R.  V.  Wigley 

824 

R.  V.  Wild 

754,  756 

R.  V.  Wilde 

25 

R.  V.  Wilkes 

830,  832 

R.  V.  Wilkinson 

373,  769 

R.  V.  Williams  162,  210, 

268,  269,  271, 

279,  285,  317,  425, 

441,  442, 1160, 

1202,  1210 

R.  v.  Willis 

284,  743,  744 

R.  r.  Willshire 

135 

R.  V.  Wilmett 

350 

R.  V.  Wilshaw 

432,  441,  446 

R.  V.  Wilson 

435,  441,  756 

R.  V.  Wilton 

435 

R.  V.  Wilts  &  Berks  Can 

.  Co.         1281, 

1289 

R.  V.  W^indsor 

749 

R.  V.  Wink 

517 

R.  V.  Wink  worth 

328 

R.  V.  Winslow 

314,  327 

R.  V.  Winsor,  Charlotte 

1152 

R.  V.  Withers 

27,  790 

R.  V.  Whitney 

165 

PAGE 

R.  V.  Woburn  UU2 

R.  V.  Womerslv  1073 

R.  r.  Wood      "  330,  348,  450,  517,  518, 
760,  1054,  1180 
R.  V.  Woodchester  1434 

R.  V.  Woodcock    ?,G,  438,  625,  628,  629 

6;!0,  632 


R.  V.  Yv'oodfall 

R.  V.  Wood  hall 

R.  r.  Wood  head 

R.  V.  Yv'oodley 

R.  V.  W^oods 

R.  V.  Woodward 

R.  V.  Wooldale 

R.  V.  Woolford 

R.  v.  Worcester 

R.  V.  Worcestershire  Js 

R.  v.  AVorlield 

R.  i\  Worth 

R.  V.  Wrangle 

R.  V.  AVright 

R.  V.  Wycherley 

R.  V.  W^ye 

R.  r.  Wylde 

R.  r.  Wylie 

R.  r.  Yarwell 

II.  V.  Yiites 

R.  V.  Y'^eadou 

R.  V.  Y'eoveley 

R.  V.  Y'ewin 

R.  v.  Y'ore 

R.  r.  Y'ork,  Mayor  of, 

R.  r.  Y'onng 

R.  V.  Zelicote 

Raljey  r.  Gilbert 

Rackham  v.  Marriott 

Radcliffe  v.  Fursman 

Radclifie  v.  Un.  Ins.  Co. 

Radford  r.  IM'Intosh 

Radford  v.  Wilson 

Radnorshire,  The 

liaggett  r.  Musgrave 

Raikes  v.  Todd 

Rain  forth,  Re 

Rainsford  v.  Smith 

Rajah,  The 

Rajah  of  Coorg  r.  E.  India  Co 

Ramadge  v.  Ryan 

Rambert  r.  Cohen 

Rambler  r.  Tryon 

Ramchnrn  Mullick  v 

Radakissen 
Ramsbotham  i\  Senior 
Ramsbottom  v.  Buckhurst 
Ramsbottom  v.  Mortley 
Ramsbottom  t:  Tnrnbridge 
Ramsden  r.  Dyson 
Ramuz  v.  Crowe 


35,  Go,  139 

272 

1222,  1:223 

421 

1261 

21,276 

725,  1015,  1029 

1458 

944 

1468 

195 

591,  592,  615 

379 

260,  1209,  1212,  1213 

497 

1434 

496.  1194 

314,  326 

697 

823,  824 

272 

1021,  1336,  1471 

1228,  1231,  1232 

1105 

1442 

440,  768  831 

7(;6 

698 

925 

796 

1418 

192,  695 

229 

477 

704 

872 

930 

120 

226 

815 

1211 

385,  1202,  1203 

1209 

Luckmeccluind 

52 

806 

108 

375,  378 

375,  378 

720,  724 

403,  404 


(2827) 


xc 


TABLE  OF  CASES  CITED. 


PAon 

PAGE 

Eanc'liffc  r.  Parkyns 

58(J 

Redington  v.  Redington 

868 

Kaudali  v.  Gurney         1129, 

1130,1132 

Reece  v.  Rigby 

54 

1133 

lieece?;.  Trye 

795 

Randall  r.  Lynch 

1570 

Reed  r.  Deere 

370 

Rantlall  v.  Morgan 

868,  880 

Reed  r.  Devaynes 

183 

I\andall  i\  Newson 

1005 

Iveed  V.  Fenn 

936 

IJandall's  case 

1102 

Reed  r.  Jackson         108, 

542,  544 

552, 

Kandell  r.  Trimen 

1009 

1437 

Kaudle  r.  Blackburn 

044 

Reed  v.  James 

1221, 

12;i2 

Randolph  v.  Gordon 

583 

Reed  r.  King 

•1218 

Ivaiids  V.  Thomas 

1142 

Reed  v.  Lamlj 

1359, 

1592 

Ranee    Khujooroonissa    v. 

Mussamut 

Reed  v.  Passer 

380 

Ronshun  Jehan 

VM 

Rees,  Re 

905 

Rangeloy  r.  Webster 

1480 

Rees  V.  Bo  wen 

1239 

Ranger  v.  Gt.  West.  Ry.  Co 

1533 

Rees  V.  Lloyd 

151 

Rankin  v.  Horner 

G93 

Rees  V.  Overbaugh 

1550 

Rankin  v.  Tenbrook 

GOO 

Rees  V.  Rees 

180 

Rann  v.  Hughes 

854 

Rees  V.  Smith 

300 

Ransley,  ex  parte 

lOi 

Rees  V.  AValters 

584, 

1440 

Raper  v.  Birkbeck 

1555 

Rees  V.  Williams 

1507 

Rapliael  v.  Bk.  ol'  England 

814 

Reeside,  Schooner,  The 

992, 

1014 

Rapp  r.  Latham 

G.r) 

Reeve  v-  Bird 

802 

Rasbotham  v.  Shropshire  Union  Ry  Co. 

Reeve  v.  Hcdson 

1341, 

1305 

48U 

Reeve  v.  Whitmore 

049 

Rashdall  v.  Ford 

10(;9 

Reeve  v.  Wciod 

1106 

Ratclifl' I!.  Ratcliff  &  Anderson     135H, 

Reeve's  Trusts,  Re 

183 

1300 

Reeves  v.  Hearne 

930 

Ravce  v.  Farmer 

1455 

Reeves  v.  Lindsay 

905 

Ravenga  r.  Mackintosh 

513 

Reeves  v-  Slater 

725 

Ravencrol't  v.  Jones 

10  !3 

Reflell  V.  Reffell 

979 

Rawley  v.  Rawley 

933 

Regicides,  Trial  of  the 

1173 

Rawlins  v.  Desborough        5 

^,  3 12,  :M9 

Reid  V.  Batte 

370,  37. 

-,,  377 

Rawlins  c.  Richards 

013,  920 

Reid  V.  Langlois 

792, 

1534 

Rawlins  v.  Turner 

85  J 

Reid  '(.  MargisQU 

1318 

Rawlins  v.  West  Derby 

94.3 

Read  r.  Teakle 

211 

Rawlinson  v.  Clarke 

972 

Reidpath's  case 

198 

Rawlinson  t-.  Oriel 

1444 

Reidy  v.  Pierce 

25 

Raworth  v.  Marriott 

178 

Reilly  v.  Fitzgerald   • 

550, 

14.32 

Rawson  v.  Haigh        519,  520,  524,  525 

Reimers  r.  Druce 

1479 

Rawson  v.  Walker 

980 

Remmett  r.  Lawrence 

732 

Rawstorne  v.  Gandell 

000 

Reneaux  v.  Teakle 

211 

Ray  r.  Jones 

017 

Kenner  v.  Bank  of  Columbia 

993 

Raymond,  ex  parte 

100 

Rennie  v.  Clarke 

722 

Rayner  v.  Allhusen 

1527 

Rennie  v.  Wynn 

722 

Read  v.  Anderson 

817 

Resp.  V.  Fields 

739 

Read  v.  Coker 

300 

Resp.  V.  McCarty 

747,  763 

Read  v.  Dunsmore 

245 

Reuss  V.  Picksley 

880 

Read  v.  Gamble 

379,  410 

Renter  v  Electric  Telcgr 

Co.    841 

,  844 

Read  v.  Nash 

883 

Revell  V.  Blake 

1492 

Reed  v.  Passer 

575.  ] 355 

Revis  V.  Smith 

1126 

Read  v.  Victoria  St.  &  Pimlico  Ry.  Co. 

Rew  r.  Barber 

1003 

1429 

Rew  V.  Hutchins 

306,  484 

Reade's  case 

734 

Reynell  v.  Lewis 

722 

Reader  v.  Kingham 

882,  884 

Reyncll  v.  Sprye 

97,  803, 

1537 

Read  head  v.  Midi.  Ry.  Co. 

99!) 

Reyncr  v.  Hall 

736 

Rearden  r.  Minter 

1509 

Reyncr  v.  Pears(!n 

534 

Reav's  estate 

1565 

Reynolds,  ex  p.,  re  Rev 

riolds 

1106, 

Redding  v.  Wilks 

885 

1247 

Redford  v.  Birley 

515 

Reynolds,  Re 

J20,  1106 

1247 

(2328) 


TABLE  OF  CASES  CITED. 


XCl 


PAGE 

Reynolds  r.  Fenton  9,  1478,  1480,  14ril 


Keynolds  v.  Reynolds 
Reynolds  v.  Staines 
Rej^noldson  r-  I'eikins 
Rhodes  v.  Airdule  Drain 
Rhodes  r.  Rhodes 
Ricardo  v.  (Jarcias        1447,  1474 


Com. 


Inclosure  Commis 


148 
1578 

607 
1490 

m-i 

1475, 

148.J 

1527 

908 

724 

964,  972,  981 

543 

251 

301 

1527 

590 

1174,  1181 

707 

400,  1560 


Riccard  t 
Rice,  Re 
Rice  w.  Rice 
Rich  r.  Jackson 
Richards  v.  Bassett 
Richards  i:  151  uck 
Richards  r.  Easto 
Richards  c.  (iellatly 
Richards  i\  Gogarty 
Richards  v.  Hough 
Richards  t\  Johnston 
Richards  v.  Lewis 
Richards  v.  Lond.  &  S.  Coast  Ry.  Co. 

26- 

Porter 

Richards 
Richards  r.  Rose 
Richaidsoii  v.  Anderson 
Richardson  v.  Barry 
Richardson  v.  Dubois 
Richardson  v.  Gifford 
Richardson  v.  Mellish 
Richardson  v.  Newconib 
Richardsiin  ii  Watsjn 
Richardson  v.  Williamson 
Richardson  v.  Willis 
Richardson  r.  Younge 


Richards  v. 
Richards  v. 


398, 


876 

217,  324,  3!7 

14() 

1309 

925 

212 

855 

1355,  1358 

1584 

960,  1022 

1009 

248,  1383 

059 


Riches  &  JMarshall's  Trust  Deed,  Re  204 

Richey  v.  Garvey                '  389 

Richmond  v.  Sm'ith  206 

Rickards  c.  Murdock  1212 

Ricketts,  Re  1109 

Ricketts  v.  Bennett  204 

Ricketts  D.  Gurney  1127,  1129 

Ricketts  v.  Turqu'and  lOKi 

Rickford  v.  Ridge  45 

Rickman  r.  Carstairs  1022 

Rideout's  Trusts,  Re  817 

Rider  r.  Wood  7 

Ridgeway  r.  Darwin  647 

Ridgway  v.  P:wl)auk  341,  343 

Ridgway  v.  Wharton  876,  877 

Ridler,  Re,  Ridler  v.  Ridler  171 

Ridley  v.  Gyde  519,  523 

Ridley  v.  Ridley  888 

Rigden  v.  Vallier  175 
Rigg  V.  Curgenven              732.  734,  738 

Rigger;.  Burbidge  711,  1452 

Right  V.  Darbv  48 

Riley  v.  Gerrish  981,  1561 

Riley  v.  Home  998 


PAGE 

Ripley,  Re 

968 

Ripley  v.  Warren 

20 

Ripon  case 

606 

Ripun  v.  Davics 

803 

Ittppon  r.  Priest 

1500 

Rishton  i:  Ncsbitt 

570 

Rishton  v.  Nisbctt 

1127, 

1130 

Rishton  V.  Whatmore 

877 

,  948 

Rising  V.  Dolphin 

951 

Rist  r.  Faux 

334 

Ritchie  v.  Van  Gelder 

252 

River  Steamer  Co.,  Re 

922 

Roach  r.  Garvau 

1483 

Robarts  v.  Tucker 

730 

Robb  i\  Conijor 

1057 

Robb  V.  Stai'key 

406 

Roberts,  ex  parte 

722 

Roberts,  re,  ex  p.  Brook 

865 

Roberts  r.  Allatt 

1248, 

1250 

Roljerts  v.  Bcthcll 

187 

Roberts  v.  Bradshaw 

414 

Roberts  v.  Doxou 

422 

Roberts  v.  Eddiugton 

1517 

Roberts  v.  Fortune 

1430 

Roberts  i\  Haines 

144 

Roberts  v.  Humphreys 

35:; 

Roberts  v.  Justice 

687 

Roberts  ii  Ogilliy 

727 

Roberts  v.  Oppenheim 

1521 

Roberts  v.  Orchard 

300 

Roberts  v.  Phillips 

909 

Roberts  ik  Roberts 

921 

Roberts  v.  Snell 

253 

Roberts  v  Tucker 

887 

Robert's  case 

752 

Robertson  v  French            148,  961 

,  962 

Robertson  v.  Jackson 

988, 

1011 

Robertson  v.  Powell 

915 

Ivoliertson  r.  Struth         108 

1475, 

1487 

Ixobins  V.  Bridge 

1059 

Rol)ins  V.  Dolphin 

1476 

Robinson  v.  Anderson 

203 

Robinson  v.  Brown 

414 

,  415 

Robinson  ?'.  Collingwood 

188 

Robinson  r.  Curry 

98 

Robinson  v.  Davies 

406 

Robinson  v.  Davison 

1009 

Robinson  v.  Harnian 

1000 

Robinson  v.  Hawksford 

45 

Robinson  v.  Kitciiiu 

723 

Robinson  v.  Local  ISoard  of  Barton     59 

Robinson  r.  Mark  is 

430 

,  408 

Robinson  v.  Mollett 

201 

Robinson  v.  Nalion 

721 

Robinson  v.  Robinson 

114 

Robinson  v.  Robinson  &  Lane  746 

,747 

Robinson  v.  Scotney 

647 

Robin.son  r.  Touray 

1551 

Rol)inson  v.  Vaughton 

385 

(2829) 


XCU 


TABLE  OF  CASES  CITED. 


PAGE 

Robinson  v.  Ld.  Vernon  370,  })()/' 

Robinson  v.  Yarrow  729,  7oO,  731 

Robinson's  case  117 

Robison  v.  Swett  51 'J,  1447 

Robson  V.  Alexander  (391 

Robson  V.  Att.-Gen.  5G3,  572 

Robson  V.  Eaton  1439 

Robson  V.  Kemp  668,  807 

Robson  r.  N.  East.  Ry.  Co.  53 

Robson  r.  Rolls  522 

Roch  V.  Call  en  1U4G 

Rochester,  Dean  and  C.  of,  v.  Pierce 

124.  842 
Rochfort  V.  Sedlev  641 

Roddam  v.  Mc^rley  175,  607,  935 

Roden  r.  Lond.  ymall  Arms  Co.     1016 
Roden  v.  Ryde  1578 

Rodick  V.  Gandell  1533 

Rodriques  v.  Melhuish  227 

Rodriquez  v.  Tadmire  333 

Rodwell  V.  Osgood  106 

Rodwell  V.  Phillips  892,  893,  894 

Rodwell  r.  Redge  134 

Roe  r.  Birkenhead, Lane, &Ches.Junct. 
Ry.  Co.  842 

Roe  r.  Davies  241 

Roc  V.  Davis  393 

Roe  V.  Day  650 

Roe  V.  Ferrars  652 

Roe  V.  Harrison  699 

Roe  V.  Harvey  138 

Roe  V.  Hersey  109 

Roe  V.  Ireland  153 

Roe  V.  Minshal  698 

Roe  V.  Parker  548,  550 

Roe  V.  Rawlings        111,  566,  589,  592, 

15S8 
Roe  V.  Reade  159 

Roe  V.  Wilkins  1.570 

Roe  V.  Archbp.  of  York    159,  859,  860, 

861 
Roffev  V.  Henderson  835 

Rotfey  V.  Smith  294 

Rogers  ;■.  Allen  585 

Rogers  r.  Custance  409,  410 

Rogers  v.  Goodenough  920 

Rogers  v.  Hadley  967 

Rogers  r.  Payne  972 

Rogers  r.  Pitcher  126 

Rogers  v.  Powell  828 

Rogers  v.  Spence  866 

Rogers  r.  Taylor  145 

Rogers  v.  Wood  540,  553 

Rokeby  Peer.  574 

Roles  V.  Davis  250 

Ralfe  V.  Dart  1318 

Rolfe,  ex.  p.,  re  Spindler  172 

RoUason  r.  Leon  852 

Rolls  V.  Pearce  837 


PAQE 

Rolt  V.  White  720 

Ronayne  v.  Sherrard  889 

Ronkendorff  r.  Taylor  1510 

Rooke  V.  Ld.  Kensington  971 
Rooker  r.  Rooker  and  Newton          191 

Rookwood's  case  313 

Roos  Barony  1303 

Root  ('.  King  337,  1417 

Kopps  V.  Barker  1019 

Koscommon  Peer.  573,  575 

Rose  V.  Blakemore  1255 

Rose  V.  Bryant  611 

Rose  V.  Cunynghame  878 

Rose  V.  Himely  1475 

Rose  V.  N.  East.  Ry.  Co.  53 

Rose  V.  Savory  644 

Ross  V.  Bruce  379 

Ross  V.  Buhler  1173 

Ross  r.  Clifton  301 

Ross  V.  Gibbs             '  793 

Ross  V.  Gould  37,  1547 

Ross  V.  Hill  205,  206 

Ross  V.  Lapham  337 

l^oss  V.  Parkyns  203 

Rossiter  ('.  Miller  875,  877 
Rouch  V.  G.  W.  Ry.  Co.  522,  523,  525 
Rougemont  v.  Royal  Ex.  Ass.  Co.    463 

Roupell  V.  Haws  313,  805 

Rousillon  V.  Rousillon  1478 

Routledge  r.  Hislop  1448 

Routledge  v.  Ramsay  63,  925 

Rowan  r.  Jebb  737,  738 

Rowliotham  v.  Wilson  144 

Rowcliffe  V.  Leigh  1538 

Rowcroft?'.  Basset  612 

Rowe  V.  Brenton        150,  308,  388,  592, 
597,  598,  1341,  1345,  1346 

Rowe  V.  Grenfel  5,  150 

Rowe  r.  Osborne  389 

liowe  r.  Parker  308 

Rowe  r.  Rowe  1044 

Rowe  V.  Tipper  44,  45 

Rowland  v.  A.shby  769 

Rowlands  v.  De  Vecchi  614 

Rowlands  r.  Samuel  42 

Rowley  r.  Home  1422 

Rowley  c  Lond  &  N.  W.  Ry.  Co.  12;;9, 

1214 

Rowntree  v.  Jacob  118 

Roval  Ex.  Ass.  Co.  r.  Moore  982 

Rudd  r.  Wright  541,  596 

Ruddock  c.  Marsh  211 

Rudge  V.  M'Carthy  374 

Rugg  r.  Kingsmill  164 

Rumball  v.  Met.  Bank  7,  724 

Rumsey  v.  Reade  714 

Rush  V.  Peacock  407,  682 

Rush  V.  Smith  1221 
Rushworth  v.  Lady  Pembroke        1446 


(2830) 


TABLE  OF  CASES  CITED. 


xcm 


PAGE 

Russel  r.  Russel  8i-i9 

Russell,  ex  parte  1127 

Russell,  ex  parte,  re  Butterworth     171 
Russell  V.  ColHn  1204 

Russell  V.  Dickinson  961,  1042 

Russell  (;.  Jackson  784,  785,  799 

Russell  V.  Langstafte  15(il 

Russell  V.  Rider  1205,  1242 

Russell  V.  St.  Aubvn  1043 

Russell  r.  Smyth  1474, 1478,  1486,  1576 
Rust  V.  Baker  218 

Rustell  r.  Macquister  322,  323 

Rutherford,  Re  931 

Rutland's,  Lady,  case  108,  964 

Rutter  y.  Chapman  641 

Rutter  V.  Tregent  291,  292 

Ryall  V.  Hannam  1033 

Ryan,  Cornelius,  Re  904 

Ryan  v.  Dolan  1057 

Ryan  v.  Nolan  211 

Ryan  t'.  Sams  215 

Ryberg  r.  Kyherg  1218 

Ryder  r.  Walhorne  566 

Rj'der  v.  Womhwell  39,  60 

Sadler  r.  Robins  1474,  1486 

Sadlier  r.  Biggs  338,  1026 

Sage  V.  Wilcox  872 

Sainsbury  v.  Matthews     240,  247,  893 
Sainter  v.  Fergu.son  62 

Sainthill  v.  Bound  1238 

Sal«  r.  Lambert  875 

Salisbury  v.  Marshall  1002 

Salisbury,  M.  of,  v.  Gt.  North  Ry.  Co. 

142 
Salkeld  v.  Johnson  96 

Salm-Kvrburg  v.  Pomansky         Errata 
Salmon 'r.  Webb  980 

Saloucci  r.  Woodmass  1482 

Salte  V.  Thomas  1358,  1363,  1509 

Saltmarsh  i\  Hardy  663 

Sampson  i\  Yardley  507 

Sanborn  r.  Neilson  689 

Sanders  v.  Maclean  6 

Sanders  v.  Meredith  609 

Sanders  r.  St.  Neot's  Union      840,  844 
Sanders  r.  Sanders  936 

Sanderson,   Re  Errata 

Sanderson,  Re,  Wright  v.  Sanderson 

Errata 
Sanderson  v.  Collman  115,  728,  729 
Sanderson  v.  Graves  975 

Sanderson  r.  Nestor  1470 

Sanderson  v.  Symonds  1548,  1551, 1557 
Sanderson  v.  Westley  951 

Sand  ford  r.  Remington  807 

Sand  Hands,  Re  170 

Sandilands  v.  Marsh  205,  531 

Sandys  v.  Hodgson  724,  733 

Sanford  v.  Chase  1130 


San  ford  v.  Raikes 

PAGE 
1016 

Sangster  v.  Mazarredo 

663 

Saph  V.  Atkinson 

1584 

Sarell  r.  Wine 

924 

Sargeson  v.  Sealy 

1429 

Sari  V.  Bourdillon 

873,  874,  875 

Sastry  Velaider  v.  Sembecutty         190 

Satterthwaite  ii  Powell 

222 

Saunders,  Re 

911,  912 

Saunders  v.  Bates 

245 

Saunders  v.  Cramer 

872 

Saunders  v.  Jones 

478,  483 

Saunders  I).  Mills 

324 

Saunders  v.  Saunders 

182 

Saunders  r.  Topp 

896,  897 

Saunderson  v.  Jackson 

879 

Saunderson  v.  Judge 

197 

Savage  v.  

193 

Savage  v.  Binney 

450 

Savage  v.  Canning 

243 

Savage  v.  Hutchinson 

1333 

Savage  v.  Smith 

266 

Savery  v.  King 

173 

Sawyer  i\  Birchmore 

784,  804 

Sawyer  v.  Eifert 

338 

Sawyer  v.  Maine  Fire  &  Mar.  Ins.  Co. 

1480 

Saye  and  Sele  Peer. 

129,  575,  1418 

Sayer  v.  Glossoi) 

1590 

Sayer  c.  Kitchen 

1545 

Sayer  w.  Wagstaff 

1200 

Sayers  v.  Walsh 

690 

Say  re  v.  Hughes 

868 

Scaife  v.  Farrant 

999 

Scaife  v.  Tarrant 

999 

Scales  V.  Key 

214 

Scaramanga  i\  Stamp 

997 

Scheihel  v.  Fairbairn 

51 

Schibsby  r.  Westenholz 

1478 

Schmeltz  v.  Avery 

983 

Schneider  v.  Norris 

879 

Schoiield,  ex  parte,  in  re 

Firth      1219 

Schofield  V.  Heap 

1043 

Scholes  r.  Chadwick 

603,  684 

Scholes  r.  Hilton          10 

79,  1080,  1081 

Scholey  v.  Goodman 

672 

Scholey  v.  Walton 

661 

Schultz  V.  Astley 

730,  1561 

Schwalbe,  The 

227 

Scoones  v.  Morrell 

142 

Scorell  r.  Boxall 

894 

Scott  V.  Bentley 

1483 

Scott  V.  Bourdillion 

983 

Scott  V.  Clare 

384 

Scott  r.  Crawford 

72-^ 

Scott  V.  Fenoulhett 

1039 

Scott  V.  Irving 

201 

Scott  V.  Jones 

379,  415 

Scott  V.  Lifford 

44 

(2831 ) 


XCIV 


TABLE  OF  CASES  CITED. 


Scott  r 
Scott  r 
Scott  V. 
Scott  r. 
Scott  r. 
Scott  V. 


Lond.  Dock  Co. 

Marshall 

Miller 

Oxford,  Ld. 

Pilkington 

Sampson 


PAGE 

2U7 
GGV) 
1247 
322 
1472,  1489 
337 


Scott  r.  Scott 
Scott  i\  Shearman 
Scott  V.  Stanslleld 
Scott  r.  Waithman 
Sc  )tt  V.  Walker 
Scott  r.  Z^'gomala 
Scoulcr  r.  Plowright 
Saa  Nymph,  The 
Saag )  r.  Deanc 
Seaman  v.  Nctherclift 
Searlc  i\  Barrington, 
Scarlc  t'.  Keeves 
Soarlo  V.  Lr.verick 
Ssorlc  IK  Price 
Searlo  t\  Reynolds 
Seddon  r.  Ttitop 
See:l  t'.  Iliggins 
Solby  ti.  Browne 
Solby  V.  Harris 
Selby  r.  Hills 
Sclby  V.  Sdby 
Scldcn  V.  Williams 
Solfc  V.  leaacson 
Sellero  v.  Till 
SclLi  ?'.  Iloare 
Sells  V.  Soils 
Sclme  J  t'.  Judge 
Sslway  r.  Chappell 
Selwood  r.  JMildmay 
Selw^-n's  case 
Seni  )r  v.  Armitage 
Serle  v.  Norton 
Saton  c.  Slade 
Sewcll  r.  Corp 
Sewell  r.  Evans 
Seymour  v.  Maddox 
Shaltesbury,  Ld.,  t 


Ld. 


605, 


913 

143) 

1425 

1571 

1527 

485 

178 

224 

977 

112G 

GOO 

89  J 

1000 

G75 

133 

1453 

58,  G2 

2J4 

1311,  1351 

1127,  1133 

879 

1015 

1193 

193 

1180 

971 

300 

1184 

1038,  1039 

222 

995 

45 

8-^0 

1517 

1578 

1006 

Digby,-  Ld.     1174 


Shaw  r.  Beck 
Shaw  v.  Bran 
Shaw  I".  Broonx 
Shaw  r.  Gould 
Shaw  r.  Holmes 
Shaw  ?'.  Markham 
Shaw  V.  Picton 


PAGE 
3G0 

171 

GS5,  GH7 

1476 

1534 

414 

724 


Shah  Mukhun  Lall  v.  Nawab  Im.  Dowlah 

92/ 
Shand  v.  Bowes  Gl 

Shankland  r.  City  of  Washington    982 
Shannon  v.  Bradstreet  874 

Shapcott  V.  Chappell  1594 

Shardlow  v.  Cotterill  874,  876 

Sharman  r.  Brandt  871 

Sharp  V.  Carter  1244 

Sharp  V.  Leach  174 

Sharp  V.  Newsholme  520 

Sharp  V.  Scoging  1258 

Sharpe  v.  Bingley  1204 

Sharpe  v.  Lamb  406,  641 

Shatwell  v.  Hall  300 

Shaw,  ex  parte  419,  1533 

(2832) 


Shaw  V.  Porr  Philip  Gold  Min.  Co. 

Errata 
Shaw  V.  Shaw  463,  113f) 

Shearm  v.  Burnard  2i)6 

Shearman  v.  Pj'ke  911 

Shearn,  in  goods  of  918 

Shedden  n  Att.-Gen.  &;  Patrick      555, 
55G,  559,  563,  1430,  1436 
Shedden  v.  Patrick  •  14G4 

Sheehy  v.  The  Profess.  Life  Assur.  Co. 
.1480,  1481 
Sheen  r.  Bumpstead  320 

Sheffield  &  Manch.  Ry.  Co.  t;.  Woodcock 

723 
Sheldon  v.  Clark 
Shelly  V.  Wriglit 
Shelton  r.  Braithwaite 
Sheltjn  r.  Springett 
Shephard  v.  Payne 
Shepheard  v.  Bcetham 
Shepherd  v.  Chewter 
Shepherd  v.  Currie 
Shepherd  v.  Hills  ' 
Shepherd  v.  Hodsman 
Shepherd  v.  Blackoul 
Shepherd  v.  Pybus 
Shepherd  v.  Sharp 
Shepherd  v.  Shorthose 
Sheppard  v.  Gdsnold 
Sheridan  &  Kirwan's  case 
Sheridan  v.  The  New  Quay  Co 
Sherman  i\  Sherman 
Sherrington  v.  .Termyn 
Sherrington's  case 
Shickernell  r.  Hotham 
Shiel  r.  O'Brien 
Shields  v.  Boucher 
Shiels  r.  Cannon 
Shiells  r.  Blackburne 
Shilcock  r.  Passman 
Shipworth  r.  Green 
Shirley  r.  Todd 
Shore  r.  Bedford 
Shore  v.  Wilson         9G2 


44. 


154. 


1004, 


354 

118 

874 

213 

1025 

109G 

736 

196 

98 

852 

211 

1005 

302 

1353 

1026 

386 

728 

702 

1558 

752 

924 

914 

536.  568,  569 

1005 

53 

54,  343 

118 

685 

797,  803 

965,  985,  987, 


98S,  989,  1015,  1022,  1023,   1024 
Short  V.  Lee      541,  588,  589,  591,  597, 

599,  604 
Short  V.  Stoy  706 

Short  V.  Williams  20 

Shortrede  r.  Cheek  874 

Shot  V.  Strealfleld  514 

Shower  v.  Pilck  837 


TABLE  OP  CASES  CITED. 


XCV 


164 


1237, 

869, 


389, 


160 

19) 

5(J 

143 

1247 

1545 

1041 

529 

927 

391 

837 

1000 


PAGE 

Shrewsbury's,  Lady,  case  761 

Shrewsbury  Peer.      405,  549,  560,  561, 

575," 578,  1354,  H17,  15U4,   1585 

Shropshire  Uniou  Ry.  &  Canal  Co.  v.  li. 

1394 
Shuttleworth  v.  Le  Flemino;  97,  93d 
SibberiDg  r.  Balcarras 
Sichel  c.  Lambert 
Siddons  r.  Lawrence 
Siddons  r.  Short 
Sidebottom  v.  Adkins 
Sideways  v.  Dyson 
Sidmouth  r.  Sidmuutli 
Sidney,  Algernon,  case  of 
Sidwell  r.  Mason 
Sievewright  v.  Archilmld 
Siggers  r.  Evans 
Sikes  i\  Wild 
Silkstoneand  Dodsworth  Ccaland  Iron 
Co.,  lie  1091 

Sillick  V.  Booth  220,  222 

Sills  r.  Brown  446,  1213 

Silver  r.  Stein 

Simm  V.  Anglo-Araer.  Tel.  Co 
Simmonds,  Ke 
Simmonds  r.  Andrews 
Simmonds  r.  Humble 
Simmonds  c.  Kudall         180,  181, 
Simmonds  r.  Simmonds 
Simm  )nd;!  r.  Mitchell 
Simms  r.  Henderson  466, 

Simons  r.  Gt.  AVest.  Ry.  Co. 
Simons  v.  Patchett 
Simpson  r.  Carter 
Simpson  r.  Dendy 
Simpson  r.  Dismore 
Simpson  r.  Flamank 
Simpson  v.  Fogo  1430,  1478,   1479 

Simpson  r.  Loud. Gen. OmriibusCo.   999 


1484 

723 

902 

8 

897 

1547 
829 

1207 

1342 
938 

1009 
485 
112 

157(; 

100 


4, 
1479, 


Simps  m  r.  Margitson 
Simpson  r.  Pickering 
Simpson  r.  Pobinsjn         3: 
Simps :)n  r.  Smith 
Sims  r.  Marryat 
Sims  V.  Thon'ias  1478 

Sinclair  v.  Baggaley 
Sinclair  r.  Fraser 
Sinclair?-.  Sinclair655,  1439, 1476,  1483 
Sinclair  v.  Stevenson  407,  968,  1204, 
1205,  1242 
Singleton  v.  Barrett  385 

Singleton  r.  Tomlin.son  910 


1,  938,  1016 
1440 

23,  700,  705 
1221 
loo;] 

1489 

186 

1487 


Sin(juasi,  The 
Siordet  r.  Knczinski 
Sissons  r.  Di.xon 
Skaitc  V.  Jack.son 
Skeat  v.  I^indsay 
Skeet  V.  Lindsay 
Skelton  v.  Cole 


654 


226 
371 
134 

736,  965 
927 
927 

875,  876 


Skelton  v.  Hawling 
Sketchley  v.  Conolly 
Skilbeck  v.  Garbett 
Skinner  v.  Gt.  N.  Ry. 


Co 


Skinner  v.  Lond.  &  Bright.  Ry.  Co. 

Skrine  v.  Gordon 

Skusc  V.  Da^■is 

S];3'ring  v.  Greenwood 

Shick  r.  Buchannan 

rikick  r.  Rusteed 

Sladc  v.  Tucker 

S'.ar.G  Peer. 

Slancy  v.  Wade  556,  563,  574,  575 

Slater  r.  Hodgson 

Slater  r.  Lawson 

Slater;-.  Nolan 

Siattcrie  v.  Pooley     C81,  382,  383, 


PAGE 
711 

483 

197,  202 

1527 

207, 

254 

60 

1387 

724 

690 

902 


577 
583 
601 
173 
653, 


Slaymaker  v.  Gundacker's  Ex 

Slaymaker  v.  Wilson 

Slegiib  V.  Rhinelander 

Slings". yt-.  Grainger 

Sly  V.  Sly 

Small  V.  Gibson 

Small  r.  Nairne 

Snmllcombc  n  Bruges 

Smart  v.  Harding 

Smart  r.  Hyde 

Smai  t  r.  Morton 

Smait  V.  Rayner 

Smart  v.  West  Ham  Union 

Smartle  v.  Williams 

Smee  r.  Bryer 

Smec  r.  Smee 

Smith,  Re,  Smith  v.  AVent 

Smith,  Knight  &  Co.,  Re 

Smith,   I\Iary,  case  of 

Smith  r.  Adkins 

Smith  r.  Battams 

Smith  V.  Battens 

Smith  V.  Bcadnell 

Smith  V.  Dk.  of  Beaufort 

Smith  r.  Biggs 

Smith  r.  Bird 

Smith  r.  Blandy 

Smith  r.  Blakcly 

Smith  V.  Braine 

Smith  V.  Brandram 

Smith  V.  Brownlow,  Ld. 

Smith  V.  Buller 

Smith  V.  Burnham 

Smith  r.  Can  nan 

Smith  r.  Cartwright 

Smith  V.  Chester 

Smith  V.  Conder 

Smith  V.  Cramer 

Smith  V.  Crooker 

Smith  V.  Daniell 


1251 

661 

158.) 

991 

962,  1037 

001,  602 

998 

493 

■     668 

889 

996 

144 

359 

840 

1572 

906 

347 

Errata 

1091 

741 

901 

118 

186,  610 

692 


1524, 


590,  591 


1537 
647 
642 
644 
014 
346 
253 
541 

1057 
740 
107 
189 
731 

1017 
520,  524 

1551 
793 


730. 


(2833) 


XCVl 


TABLE  OF  CASES  CITED. 


Smith  ?• 

Davies 

PAGi: 
343 

Smith  V 

L)e  Wniitz 

685 

Smith  r 

Doe  d.  Jersey 

54 

Smith  r 

Dunbar 

1.5.57 

.Smith  r 

East  India 

Co. 

815 

Smith  V 

Evans 

909 

Smith  V 

Fell 

794 

Smith  r 

Forty 

9,10 

Smith  and  Goddard 

V.  Ridgway 

1040 

Smith  r 

Harris 

910 

Smith  r 

Hayes 

700 

Smith  r 

Henderson 

1576, 

1577 

Smith  r 

Howden 

143 

Smith  V. 

Hudson 

899 

Smith  v. 

Hughes 

1004 

Smith  V. 

James 

943 

Smith  r 

Jeffries 

354 

Smith  V 

Jefirj-es 

1015 

Smith  V 

Johnson 

1455 

Smith  V 

Keal 

536 

Smith  V 

Keating 

109 

Smith  V 

Knowelden 

240 

,  244 

Smith  r. 

I.ane 

1204 

SmJth  V. 

Lloyd 

1.50 

Smith  V 

Lovell 

2G4 

Smith  r. 

Lyon 

665 

Smith  V 

]\Iapleback 

8.58 

Smith  V. 

Marrable     294,  295, 

:iC2, 

1002 

Smith  V. 

jMarsaok 

729 

Smith  V. 

JIartin 

345 

Smith  r. 

IMatthews 

868 

Smith  V. 

Morgan 

664,  1199, 

1202 

Smith  V. 

.Alullett 

44 

Smith  r. 

Neale 

880, 

886, 

1006 

Smith  r. 

NicoUs 

1474,  1485, 

1490 

Smith  r. 

Poole 

923 

Smith  V. 

Koyston 

14,51 

Smith  V 

Kummons 

1429,  1437, 

1445 

Smith  V 

Sainsbury 

1.381 

Smith  V. 

Scudder 

675 

Smith  V. 

Sliaw 

300 

Smith  r 

Simmes 

688 

Smith  r 

Sleap 

41)6 

Smith  V. 

Smith  ."99, 

51.5,  568 

682, 
903 

8.37, 
905 

Smith  v. 

Surman 

894 

896 

897 

Smith  V. 

Surridge 

1475 

Smith  V. 

Tavlor 

192 

193 

695 

Smith  V. 

Tebbitt 

216 

564 

573 

Smith  r. 

Thackeray- 

145 

Smith  V. 

Thomas 

274 

Smith  r 

Thompson 

63 

Smith  r 

Thorne 

922 

925 

Smith  (• 

Tomljs 

888 

Smith  V. 

Truscott 

1080 

Smith  c. 

Voss 

8 

Smith  V. 

Webster 

870 

Smith  r. 

Whittingham 

589 

681 

Smith  V. 

Wilkins  ' 

306 

293 
114 


PAGE 

988,  991 
293 
385 
714 

1343 
620 
117 

1127 
684 
195 
887 
665 
337 
868 
152 

1083 
969 
146 
864 

1201 
141 
•308 
Erra  ta 
i7,  140 
228 
116 


Smith  ?'.  W'^ilson 
Smith  V.  Winter 
Smith  V.  Young 
Smith's  Estate,  Re 
Smithson's,  Sir  Hugh,  case 
Smyth  T.  Anderson 
Smyth  r.  "Wilson 
Smythe  r.  Banks 
SkelgroAC  )•.  ]\Iartin 
Snell  V.  Finch 
Snelling  v.  Huntingtield 
Snowball  v.  Goodricke 
Snowden  v.  Smith 
Soar  V.  Foster 
Society,  &c.  v.  Wheeler 
Solicitor,  In  re,  A 
Solly  V.  Hinde 
Solomon  r.  Vintners'  Co. 
Solomon,  Re,  ex  p.  Dressier 
Solomons  r.  Campbell 
Somerset,  IX of,  v.  Fogwel 
Somerset,  D.  oi';  v.  France 
Somerset  v.  Hart 
Somerville  v.  Hawkins 
Somerville  v.  Somerville 
Somes  V.  Skinner 
Soper  r.  Dibble 
Sopwith  r.  Sopwith 
Sotheran  v.  Dening 
Satilichos  v.  Kemp 
Souch  V.  Strawbridge 
Soule's  case 
Souter  V.  Drake 
South-Eastern  Ry.  Co.  v.  Yv'arton     120 
South  of  Ireland  Colliery  Co.  ;•.  Waddle 

838,  840 
Southall  V.  Rigg  263 

Southami^ton  case  666 

Southamiiton,  Mayor  of.  r.  C! raves  1285 
Southami^ton  Dock  Co.  v.  Richards  1515 
Southard  r.  Wrexford  1244 

Southee  v.  Denny  244 

Southey  r.  Kash  1192,1193 

Southward  Bridge  Co.  v.  Sills  843 

Southwark  Elect,  case 
Southward  Water  Co.  i".  Quick 
Southwell  r.  liowditch 
So  ward  v.  Leggatt 
Sowerby  v.  Butcher 

Spadwell  v.  

Spaight  V.  Ted  castle 
Spaight  V.  Twiss 
Spargo  V.  Brown 
Sparkes  v.  Barrett 
Sparrow  x\  Farrant 
Sparrow  x\  Hill 
Spartali  r.  Benecke 
Spears  w  Hartly 
Spence  r.  Healey 
34) 


1435 
918 
992 

887,  888 
1165 
1000 


341. 


1194 

1.528 
995 
342 

■  982 
567 
226 

1505 

588,  653 

464 

1589 

57 

980,  996 

102 

972 


TABLE  OF  CASES  CITED. 


xcvn 


PAGE 

Spence  r.  Stewart  1130 

Spenceley  v.  De  Willott  1227 

Spenceley  v.  Sehuleuburgh  803,  804 

Spencer  v.  Barough  (Ml 

Spencer  v.  Billing  422 

Spencer  ;;.  Newton  1128,  112!) 

Spencer  v.  Thompson       202,  322,  1439 

Spencer  v.  Williams  1433 

Sperling   Re  909 

Spice  P.  Bacon  200,  207 

Spicer  v.  Burgess  1559 

Spicer  v.  Cooper  989 

Spickernell  v.  Hotham  874 

Spieres  v.  Parker  109 

Spiers  v.  Willison  377 

Spill  V.  Maule  140 

Spindler,  Re,  ex  p.  Rolfe  172 

Spittle  V.  Walton  11G9 

Spollan  V.  Magan  922,  923 

Spong  V.  Wright  924,  925 

Spnoner  v.  Juddow               25,  293,  300 

Spooner  v.  Payne            430,  1572,  1574 

Spragge's  case  410 

Spratt  V.  Harris  1484 

Sprigge  p.  Sprigge  182 

Spring,  The  8 

Spring  P.  Eve  27 

Spring  p.  Lovett  980 

Spurr  V.  Trimble  218 

Sqnire  p.  Campbell  971,  972 
Srimut  Rajah  r.  Katama  Natchiar  1454 

St.  Catherine's  Hospital  Case  1518 

St.  George  p.  St.  IMargaret  130 

St.  Losky  V.  Green  240,  254 

Stace  p.  Griffith                    58,  815,  810 

Stackpole  p.  Arnold            730,  905,  982 

Stackpole  v.  Howell  183 

Stackpoole  p.  The  Queen  543 

Stafford  Peer.                         500,  504,  573 

Stafford  p.  Clark  1455 

Stafford,  Mayor  of,  p.  Till  124,  842 

Stafford's  Ld.,  case  12"8,  1200 

Staines  p.  Stewart  910,  908 

Stainton  p.  Chad  wick  1524,  1537 

Stainton  and  Wife  p.  Jones  8 

Stalworth  p.  Inns  1344 

Stamford,  Ld.  p.  Dunbar  151 

Stammers  p.  Di.xon  1025 

Stancliffr.  Hardwicke  195 

Standage  p.  Creighton  678 

Standard  p.  Baker  1085 

Standen  p.  Chrismas  1507 

Stauden  p.  Standen  590,  818 

Standish  p.  Ross  732 

Standley,  Re  906 

Stangor'r.  Scarle  1580 

Stanhope  p.  Knott  805 

Stanley  p.  Dowdeswell  876 

Stanley  p.  Stanley  1037 

G  LAW  OF  EA'in. — V.  I.  (283 


PAGE 

Stanley  p.  White  308,  310,  700 

Stanstield  p.  Hobson  935 

Stanton  p.  Collier  800 

Stanton  r.  Percival  000,  005 

Stanton  p.  Styles  1452 

Stanwix's,  Gen.  case  221 

Stapleton  p.  Crolts         1147,  1158,  1104 
Stapleton  p.  Ha^'man  850 

Stapylton  p.  Clough  591,  013,  620 

Startup  p.  ]\Iacdonald  47 

State,  the,  p.  Adams  161 

State,  the,  v.  Boswell  1257,  1258 

State,  the,  v.  De  Wolf  1170 

State,  the,  p.  Freeman  813 

State,  the,  r.  Hayward  824 

State,  the,  p.  Molier  824 

State,  the,  p.  Rawls  707 

State,  the,  p.  Stinson  216,  1177 

State,  the,  p.  Whiscnhurst  1180 

Staverton  r.  Ashburton  1467 

Stead  p.  Dawber  975 

Stead  r.  Heaton  596,  597 

Steadman  p.  Ardcn  1534 

Steadman  r.  Duhamel  729 

Steamshii)  Co.  Norden  p.  Dempsev  201, 

988 
Stearine,  &c.  Co.  v.  Heintzmann  1210 
Stearn  p.  Mills  737 

Stebbing  p.  Spicer  213 

Stedman  p.  Go(;ch  1339 

Steel  P.  Prickett  142,  542,  548 

Steel  r.  State  iine  Steamship  Co.     999 
Steele,  Re  920 

Steele  p.  Hoe  1019 

Steele  v.  Mart  979 

Steele  r.  Stewart  792 

Steevens's  Hosp.  p.  Dyas  181 

Steiglitz  p.  Egginton  845 

Steinkeller  p.  Newtun       424,  493,  494, 

1200 
Stephen  p.  Gwenap  5-"9 

Stephens  p.  Clark  646,  1502 

Stephens  r.  Foster  1205 

Stephens  p.  Heathcote  663 

Stephens  p.  Pinney  376 

Stephens  p.  Webb  364 

Stern  p.  Sevastopulo  484 

Steuart  p.  Gladstone  463,  035 

Stevens  p.  Lloyd  1551 

Stevens  p.  IMicli.  Ry.  Co.  &  Lander  842 
Stevens  p.  Thacker  071 

Stewart,  Re  910 

SteAvart  p.  Alison  1517 

Stewart  p.  Anglo-Califor.  Gold  Min.  Co. 

842 
Stewart  v.  Cauty  51 

Stewart  p.  Eddowes  871 

Stewart  p.  Forbes  203 

Stewart  p.  Smith  482 

5) 


xcvni 


TABLE  OF  CAtit.0  CITED. 


Stewart  v.  Steele 

Htewartson  v.  Watts 

Hteyner  v.  Droit wich 

Still  r.  Haliord 

Stilwell  V.  Kiick 

Stimson  v.  Farnham 

Stoate  V.  Stoate 

Stobart  r.  Drydcn       508,  G04, 

Stobart  r.  Totkl 

Stock  r.  M'Avoy 

Stockbridge  /;.  (^uicke 

Stcfkdale  v.  Hansard 

Stofken  v.  Collin 

Stocklieth  r.  De  Tastet 

Stockil  V.  Punshon 

Stockton  V.  Demuth 

StockAvell  V.  Kitherdori 

Stoddart  v.  Grant 

Stoddart  v.  Manning 

Stoer,    In  re 

Stoevcr  V.  Whitman 

Stokeliill  r.  Pettingell 

Stokes  i\  Bate 

Stokes  V.  Dawes 

Stokes  V.  Grant 

Stokes  V.  Pleron 

Stokes  V.  Mason 

Stokes  V.  Salomons 

Stokes  V.  White 

Stonaid  v.  Dunkin 

Stone,  James,  He 

Stone  V.  Blackburn 

Stone  V.  Forsj-th 

Stone  V.  Greening 

Stone  V.  Metcalf 

Stone  V.  Stone 

Stone  V.  Whiting 

Stone's  case 

Stones  V.  Byron 

Stones  V.  Menhem 

Stoomvaart  v.  Pen.  &  O.  St. 

Stoop's  case 

Storey  r.  Ld.  Gecrge  Lennox 

Storr  V.  Scott 

Stotherd  v.  James 

Stott  V.  Fairlaml) 

Stovcld  V.  Hughes 

Stowe  r.  Querner 

Stowell  V.  Rdbinson 

Stracey  v.  Blake 

Stracy  v.  Blake 

Strai'fon's  Exors.,  ex  parte 

Strafford's,  Ld.,  case 

Straker  r.  Graham 

Stranks  r.  St.  .J<ihn 

Stratford  v.  Greene 

Stratfbrd  &  Morton  R.  Co.   v. 


PAGE 

10.'j7 
533 

1518 

1344 

1522 
732 

1438 
,  G25,  626 

1:541 
8G9 

1355 

4 

44,  197 

691,  G92 

911 

533 

GIG 

914 

1252 
489 
991 

1147 

1465 

573,  1429 

237 

183 

25 

103 

1135 
727 
180 

1184 

1353 

1041 
977 
402 
8G2 
745 

1183 
502 
Co. 
221 
G28 

1537 
GOG 
G86 
981) 
898 
3G 
975 
G40 
G79 
723 

1231 
813 

1001 

1312 

Stratton 

116 


Nav 


820 


852 


PAGE 

Straton  v.  Rastall  118,  736 

Strauss  v.  County  Hotel  Co.  206 

Strauss  v.  Francis  680 

Streeter  v.  Bartlelt  1351,  1568 

Stringer  v.  Gardiner  1035,  1036 

Strode  v.  Kussell  1023,  1028 

Strong  V.  Dickenson  1127,  1128 

Strong  r.  Foster  981 

Stronghill  v.  Buck  120 

Strother  v.  Barr  3G5,  3G9,  376,  377 

Stroud,  Pe  1496 

Strutt  r.  Bovingdon  423,  491,  1443 

Stuart  V.  Balkis  Co.  Errata 

Stuart  V.  Lovell  290,  324 

Stucley  ?'.  Baily  981 

Studdy  V.  Sander  735,  806 

Stukeiey  v.  Butler  1037 

Sturge  V.  Buchanan  412,  G4D,  G51,  1261 
Sturgeon  t\  Wingfield  122 

Sturla  V.  Freccia    G17,  1417,  1505, 1511 
Sturm  r.  Jelfree  411 

Sturt  V.  Blagg  G6 

Suflell  V.  Bk.  of  England  1550 

Suffield  r.  Brown  146 

Suftolk  AVitches  741 

Sugden  v.  Ld.  St.  Leonards  181,182,403, 
49!,  1023 
Suisse  r.  Lowther  1043,  1046 

Sullivan  v.  Galbraith  183 

Sullivan  r.  Sullivan  1023 

Summers,  Ee  904 

Summers  v.  Griffiths  173 

Summers  v.  Moorhouse  Errata 

Summers  r.  IMoseley  1221 

Summersett  v.  Adamsoa  384 

Sumner  r.  Willliams  514 

Sunderland,  Ke  910 

Sunderland's  case  325 

Surcome  v.  Pinniger'  885 

Surplice  v.  Earns  worth  1002 

Suse  r.  Pompe  1010 

Sussex  Peer,  case   9,  G7,  559,  572,  588, 
589,  590,  5'Jl,  628,  1215,  1216,  1217 
Suter  V.  Burrell  407 

Sutton  r.  Ainslie  467 

Sutton  V.  Buck  148,  149 

Sutton  V.  Davenport  138,  696 

Sutton  V.  Gregory  613 

Sutton  V.  Johnstone  42 

Sutton  V.  Sadler  216,  347 

Sutton  V.  Sutton  936 

Sutton  V.  Tatham  201 

Sutton  V.  Temple  294, 1001,  1002,  1004, 

1005 
Swain  r.  Lewis  414 

Swan  V.  N.  Brit.  Austral.  Co.  723, 

1.562 

1091 

934 


Swan's  case 
'  Sv/ann  v.  Phillips 
36) 


TABLE  OP  CASES  CITED 


XCIX 


PAGE 

Swanne  v.  Taaffe 

1055 

Swansea  Bk.  v.  Thomas 

177 

Swansea,  Mayor  of,  v.  Quick 

474 

Swansea,  Mayor  of,  v.  (^iiirk 

474 

Swansea  V.  lly.  Co.  v.  Biidd 

1539 

Swatmaa  v.  Ambler 

880 

Sweeney  i\  Spooner 

116G 

Sweeny  v.  Promoter  Life  Ass 

Co. 

719 

Sweet  "r.  Lee     872,  877,  878, 

879, 

1015. 
1016 

Sweeting  r.  Fowler 

213 

Sweeting  v.  Pearco 

201 

Sweetland  r.  Sweetland 

908 

Sweigart  r.  Berk 

1470 

Swift  r.  Dean 

1184 

Swift  V.  Jewesbury 

933,  946 

Swift  V.  M'Tieruan         653,  1 

358, 

1.3C5. 

1505, 

1510 

Swift  V.  Nun 

481) 

Swil't  x\  Pannell 

930 

Swift  r.  Swift                           1243, 

1214 

Swift  i\  Winterbotham 

93L 

.  940 

Swiney  v.  Barry 

155G 

Swinfcn  v.  Ld.  Chelmsford 

26S 

.  080 

Swinlen  <■.  Swinfcn 

oso 

Swinnerton  r.  Staflbrd,  M.  of, 

582 

,1359 

Swire  r.  Francis 

778 

Swylt  V.  Eyres 

10^8 

Sybray  v.  White 

G69 

Sydenham  v.  Eand 

1052 

Syers  r.  Jonas 

995 

Sykes,  Re 

181 

Sykes  r.  Dixon 

872 

Sykes  r.  Dunbar 

813 

Sylph,  The 

1453 

Sylvester  t\  Hall 

3G0 

Symmous  v.  Blake 

322,  323 

Symonds  v.  Gaslight  &  Coke  Co. 

704 

Symonds  ?'.  Lloyd 

988 

Symons  v.  Pees 

1447 

f.  V.  D.  falsely  called  D. 

100 

Talb  )t,  Ld.,  v.  Cusack           1200, 

1201 

Talbjt  r.  Hodgson 

169 

Talbot  r.  Hodson 

1567 

Talb;)t  v.  Lewis 

543 

Talbot  ('.  Seeman 

1418 

Talbutt  V.  Clark 

324 

Tamvaco  v.  Lucas 

61 

Tanham  v.  Nicholson 

202 

Tann  i\  Tann 

1039 

Tanner  v.  Bean 

266 

Tanner  v.  Smart                  922 

,  924,  92G 

Tanner  v.  Taylor 

1200 

Taplin  v.  Atty 

407 

Taplin  v.  Florence 

836 

Tapling  v.  Jones 

97 

Tapp  11.  Lee 

106 

Tarleton  v.  Shingler 

1558 

Tarleton  v.  Tarleton     1474,  1489 

1490 

Tarlton  v.  Fisher 
Tarpley  v.  Blabey 
Tarte  v.  Darby 
Tatham  r.  Drummond 
Tattersall  r.  Fearnley 
Tattershall  v.  Nat.  Steamship  Co 


Tatton,  ex  p.,  re  Thorp 
Tayler  v.  Waters 
Tayleur  v.  Wildin 
Tayloe  v.  Riggs 
Taylor,  ex  parte 
Taylor,  Re 
Taylor  v.  Barclay 
Taylor  r.  Batten 
Taylor  r.  Beech 
Taylor  v.  Blacklow 
Taylor  v.  Bowers 
Taylor  r.  Briggs 
Taylor  v.  Burgess 
Taylor  r.  Carpenter 
Taylor  v.  Clemson 
Taylor  v.  Cole 
Taylor  r.  Cook 
Taylor  v.  Croker 
Taylor  r.  Devey 
Taylor  r.  Diplock 
Taylor  r.   Forster 
Taylor  v.  Gt.  Ind.  Pen.  Ry. 
Taylor  v.  Hawkins 
Taylor  v.  Horde 
Taylor  v.  Hughes 
Taylor  v.  Humphries 
Taylor  v.  Johnston 
Taylor  i\  Kinloch 
Taylor  v.  Lawson 
Taylor  r.  Linley 
Taylor  r.  Meads 
Taylor  v.  Mosely 
Taylor  r.  Needham 
Taylor  r.  Nicholls 
Taylor  r.  Parry  311, 

Taylor  r.  Richardson 
Taylor  v.  Ross 
Taylor  v.  Rundell 
Taylor  v.  Stray 
Taylor  v.  Wakefield 
Taylor  v.  Weld 
Taylor  ik  Willians 
Taylor  v.  Williams 
Taylor  r.  Witham 
Teal  r.  Auty 
Temperley  v.  Scott 
Tempest,  ex  parte 
Tempest  r.  Fitzgerald 
Tempest  v.  Kilner 
Temple,  ex  parte 
Temple  v.  Pullen 
Tennant,  ex  p.,  re  Howard 


PAGE 

1135 
324 

860 
1042 

371 
998, 

!)99 
1104 

836 

699 

365 

1 355 

515,  908,  11(15 

3,  25,  28 

15.35 

885,  h86 

794 


1425 
574 


116 

980 

981 

422 

1469 

1494 

1588 

729 

547 

222 

G78,  792 

Co.     1562 

57,  140 

169 

723 

348 

173 

186,  6G8 

1195 

891 

901 

1547,  1549 

113,  124 

951,  952 

1040,  1417 

984 

872 

1534 

201 

897 

967 

514,  078 

1080 

593 

894 

1057,  1341 

107 

896 

263,  892 

1127,  1130 

52,  1561 

203 


(2837) 


TABLE  OF  CASES  CITED. 


Tennant  v.  Bell 
Tennant  v.  Creston 
Tennant  );.  Hamilton 
Tennent  i'.  Neil 
Tennyson  v.  O'Brien 
Terrett  v.  Taylor 
Terry  f.  Huntington 
Terry  v.  Hutchinsan 
Texira  v.  Evans 
Thames  Iron  Works  Co. 
Mail  St.  Packet  Co. 
Thanet,  E.  of,  v.  Forster 
Tharpe  v.  Gisburne 
Tharpe  v.  Stalhvood 
Thatcher  v.  Waller 
Tlielluson  v.  Co.sling 
Theobald  v.  Crichmore 
Theodor  Korner,  The 
Thetlord  /;.  Tyler 
Thetlbrd's  case 
Thijl  I.  Leask 
Thorn  V.  Bigland 
Thomas,  In  the  g  )ods  of 
Thomas,  Re 
Thi>mas  Blyth,  The 
Thomas  v.  Ansley 
Thomas  v.  Brown 
Thomas  v.  Connell 
Tliomas  v.  Cook  159, 

Thomas  v.  David 
Thomas  v.  Evans 
Thomas  v.  Foyle 
Thomas  v.  Fredericks 
Thomas  v.  Jenkins 
Thomas  i;.  Ketteriche 
Thomas  v.  Lewis 
Thomas  v.  Morgan 
Thomas  v.  Newton 
Thomas  v.  Packer 
Thomas  v.  The  Qneen 
Thomas  v.  Pawling.s 
Thomas  v.  Sorrell 
Thomas  v.  Steplienson 
Thomas  v.  Thomas  219,  7 
Thomas  v.  Williams 
Thompson  v.  B)wyer 
Thompson  v.  Donaldson 
Thompson  v.  Falk 
Thomps  )n  v.  Gardiner 
Thompson  v.  Gil)s m 
Thompson  v.  Hopper 
Thompson  v.  Lacy 
Thompson  v.  Lambe 
Thompson  v.  Mosely 
Thompson  v.  Nye 
Thompson  v.  Ross 
Thompson  v.  Small 
Thompson  v.  Trail 
Thompson  v.  Trevanion 


PAGE 

PAGH 

51,  1301 

Thompson  v.  Waithman 

(ir>S 

13'J1 

Thomson  v.  Austen 

643,  689 

1228 

Thomson  v.  Davenport 

696 

160 

Thomson  v.  Hall 

905 

243 

Tlionis;)n  v.  Harding 

683 

116 

Thomson  v.  Hempenstall 

1033 

1430 

Thomson  v.  Wilson 

858 

334 

Thorburn  v.  Crawford 

Errata 

1562 

Thorndike  r.  City  of  Boston              520 

t'.  The  Roval 

Thorne  v.  Jackson 

23,  24 

972 

Thorne  v.  Tilbury 

727 

1504 

Thornes  v.   White 

73.5 

1581 

ThornhiU  v.  Thornhill 

1052 

301 

Thornton  v.  Charles 

3;!0 

446 

Thorntrn  v.  Kempster 

339,  392 

1418 

Thornton  c.  Meux 

389 

300 

Thornton  v.  Place 

1452 

1528 

Thornton  v.  Roy.  Ex.  Ass.  Co.        121:; 

215 

Thorp,  re.  ex  p.  Tatton 

1104 

1359,  1514 

Thorp  V.  Holdsworth 

296 

482 

Thorpe  o.  Cooper 

1453 

263 

Thorpe  v.  Maeaulay 

1213 

594 

Thresh  v.  Rake 

975 

906 

Thunder  v.  Warren 

374 

225 

Thurbaine  et  al. 

725 

109,  372 

Thurle  v.  Madi.son 

1572 

719,  875 

Thurston  v.  Slatford 

495 

521 

Thurtell  v.  Beaumont 

134 

862,  863,  884 

Thurtell's  case 

1160 

1194,  1231 

Thwaites  v.  Foreman 

183 

915 

Thwaites  r.  Richardson 

{)00 

148 

Thwaites  r.  Wilding 

93) 

836 

Thynne,  Lady  E.,  v.  Ld. 

Glengall  885, 

542,  544 

1043 

1434 

Tichborne  ca.se 

75,  804,  1221 

227 

Tickel  r.  Short 

702 

090 

Tickle  V.  Brown 

603,  684 

1253 

Tidey  v.  Mollett 

852 

215 

Tidmarsh  v.  Grover 

1549 

1536 

Tierney  v.  Wood 

867 

790,  791 

Tighe  V.  Tighe 

1484 

83(i 

Tildesley  v.  Harper    236, 

242,  291,2i)(i 

301) 

Tiley  v.  Cowling 

1447 

01,1028,1034 

Tilghman  v.  Fi.sher 

697 

884 

Tiliotson,  ex  parte 

1133 

935 

Tindal  v.  Baskett 

359 

1432 

Tin  ley  v.  Porter 

1080 

795 

Tinn  V.  Billing.sley 

639 

389 

Tippet's  case 

745 

1387 

Tippets  V.  Heane 

928 

998 

Tippins  V.  Coates 

1256 

21)6 

Tirzah,  The 

225 

647 

Tisdall  V.  Parncll 

586,  1505 

307,  419 

Titus  Gates'  case 

1142 

338 

Tobacco-pipe  Makers'  Co. 

V.  Loder     93 

334 

Toby  V.  Lovibond 

1496 

195 

Tod  V.  E.  of  Winchelsea 

373 

195 

Todd  V.  Kerrick 

49,  196 

519 

Todd  V.  Reid 

201 

(2838) 


TABLE  OF  CAfoES  CITED. 


CI 


PAGE 

Todd  V.  Ld.  Winchelsea  180,  491 

Toft  V.  Stephenson  936 

Toker  v.  Toker  173 

Toleman  v.  Portbury  344,  698 

Toleman,  re,  ex  p.  Bramble  42(J 

Tolleniache  v.  Tollemache  1476 

Tolman  &  Ux.  v.  Johnstone  1230 

Tomkins  v.  Att.-Gcu.  1359 

Tomkins  v.  Saltmursh  521 

Tomkins  l\  Tomkins  59 

Tomkinson  v.  Staight  897 
Tomline  v.  The  Queen  1532,1536, €ria(a 

Tomhnson  v.  Gell  883 

Tompson  r.  Williamson  203 


Toms  i\  Cuming 
Tomsi-.n  r.  Judge 
Toogood  V.  Spyring 
Tooker  r.  Smith 
Topham  v.  iNI'Gregor 
Toppin  V.  Lomas 
Topping,  ex  parte 
Torriano  v.  Young 
Tottenham's  Estate,  Re 
Toulmin  v.  Copland 
Toulmin  t'.  Price 
Tourret  v.  Cripps 
Tove}'.  In  re 
Tovey  v.  Lindsay 
Towers  v.  Newton 
Towne  v.  Campbell 
Towne  v.  Cocks 
Towne  v.  Lewis 
Towne  v.  Smith 
Town  end  i'.  Drakeford 
Townley  v.  Watson 
Townsend  v.  Ives 
Townsend,  M.  of,  i 

Townsend  v.  Weld 
Tuwnshend  Peer. 
Toyml)ee  v.  Brown 
Tracy  Peer. 


Traill  r.  Baring 
Trasher  v.  Everhart 
Travers  v.  Blundell 
Treacy  v.  Corcoran 
Treeby,  Re 
Tregany  v.  Fletcher 
Trelawney  v.  Colman 
Tremain  v.  Barrett 
Trent  v.  Hunt 
Tress  v.  Savage 
Trevanion,  Re 
Trevivan  v.  Lawrence 
Trewhitt  v.  Lambert 
Tribe  v.  Tribe 
Ti'ickett  V.  Tomlinson 
Trimby  v.  Vignier 


942,  943 
173 
140 

855 

422,  1201 

889 

922,  928 

215 

no 

1447 

404 

879 

911 

1476 

1133 

48 

483 

195 

1484 

389,  390,  391 

1)L8 

1573 

Strangroom     970, 

971,  972 

983 

571 

90 

79,  572,  573,  575,  1209, 

1504,  1588,  1590 


721 

67 

1037 

177 

918 

26 

187,  518,  1208 

1057 

125,  194 

856 

90!) 

114 

378 

903 

720 

69 


Trimble  v.  Hill 
Trimlestown,  Ld., 


Trimmer  v.  Bayue 

Tijist  V.  Johnson 

Tronson  v.  Dent 

Trotman  v.  Wood 

Trott  V.  Skidmore 

Trotter  v.  iMaclean 

Trowbridge  v.  Baker 

Trowel  t\  Castle 

Trowel  1  r.  Shenton 

Trower  v.  Lawson's  case 

Truemau  v.  Loder  990,  992 


PAGE 

817 
V.  Kemmis  584,000, 
601,  002,  052,  1564 
1028,  1042,  1043 
411 
227 
1006 
906 
.  202,  020 
694 


Trulock  V.  Robey 
Truro,  Lady,  Re 
Truslove  v.  Burton 
Trustee      Relief    Act,     Re, 

Trusts 
Tucker  v.  Barrow 
Tucker  v.  Burrow 
Tucker  v.  Good,  re  Bonner 
Tucker  v.  Maxwell 
Tuckey  r.  Henderson 
Tutf  ('.'  Warmun 
Tufton  V.  Whitmore 
Tugwell  V.  Hooper 
Tull  V.  Parlett 
Tullock  V.  Dunn 
Tunniclifte  v.  Tedd 
Tupling  V.  Ward 
Tupper  V.  Foulkes 
Tupper  V.  Tupper 
Turley  r.  Thomas 
Turn  ball  v.  Janson 
Turner,  Re 
Turner  v.  Ambler 
Turner  i\  Barlow 


1547 

885 

1091 

1010, 

1013 

935 

910,  91 1 

678 

Higgins' 

711 

692 

869 

185 

736 

1042 

8 

493 

803 

909 

661 

1387 

484,  1254 

845,  1562 

920 

7 

1057 

182,  913 

42 

21 


Turner  r.  Cameron's  Coalbrook  Steam 

Coal  Co.  125 

Turner  v.  Collins  173 

Turner  v.  Crisp  005 

Turner  v.  Eyles  207 

Turner  v.  Goulden  482 

Turner  v.  Heyland  56 

Turner  v.  Mason  195 

Turner  r.  Pearte  1184 

Turner  r.  Power  374 

Turner  v.  Walsh  154 

Turner's  case  1457 

Turney  v.  Dodwell  931 

Turquand  v.  Fearon  236 
Turquand  v.  Knight  783,  785,  788,  808 
Turquand  and  The  Capital  &  Counties 

Bk.  V.  Fearon  291 

Turquand  v.  Wilson  714 

Turrill  v.  Crawley  206 

Turton  v.  Barber  796 


(2839) 


Cll 


TABLE  OF  CASES  CITED. 


PAGE 

Tussaud  V.  Tussaud  1042,  104:5 

Tussaud's  Estate,  Re  104;i 

Tutton  V.  Darke  21,  27 

Tweedale,  Re  912 

Twemlow  v.  Oswin  22:5 

Twiss  V.  Baldwin  2(J:5 

Twynuvn  v.  Knowles  365,  377 

Twyne's  case  171 

Tyerman  v.  Smith  725 

Tyers  v.  Rosedale  &  Ferry  Hill  Iron 
Co.  975 

Tvler  V.  Ulmer  1422 

Tyler  v.  Yates  174 

Tyrer  v.  Henry  234 

Tyrwhitt  v.  Wyuee  312 

U.,  falsely  called  J.  v.  J.  828 

Udny  ('.  Udny  228 

Underwood  v.  Ld.  Courtown  689 

Underwood  i\  Wing  221 

Ungley  v.  Ungley  885 

Union  Bk.  ot  London  v.  Lenandon  849 
Union  Bk.  of  London  v.  Manby  1532 
Unity  Jt.  Ht.  Alutual  Banking  Assoc. 
ex  parte,  re  King  723 

Urquliai't  v.  Macpherson  967 

U.S.  V.  Battiste  35 

U.S.  r.  Breed  .  988 

U.S.  V.  Buford  1517 

U.S.  V.  Cushman  1444 

U.S.  V.  Gibert  368 

U:S.  V.  Gooding  525 

U.S.  V.  Hayward  354 

U.S.  V.  Leffler  969 

U.S.  V.  M'Rae  1248 

U.S.  V.  Moses  811 

U.S.  r.  Reyburn  365 

U.S.  r.  Spalding  1556 

U.S.  i\  Wagner  3 

U.S.  V.  Wood  491,  825 

Usticke  V.  Bawden  921 

Utterton  v.  Robins  911 

U-xbridge,  Ld.,  v.  Staveland  1243 

520,  521,  1570 
788,  71)8, 

124« 
420,  1533 

1579 

227 

990,  1011 

1480 


Vachee  v.  Cocks 
Vaillat^t  V.  Dodemead 


Vale  IK  Oppert 
Valentine  v.  Piper 
Valesquez,  The 
Vallance  v.  Dewar 
ValU'e  V.  Dumerque 
Valpy  V.  Gibson  874 

Vance  v.  Lowther  1549 

Vance  v.  Vance  699 

Vandenburgh  v.  Spoon er  875 

Vander  Donckt  v.  Thellusson  1217 

Vandevelde  f.  Lluellin  1135,  1136 

Van   Diemen's   Land   Bk.   v.  Victoria 
Bk.  52 

Vane's,  Ld.,  case  1165 


Van  Omeron  )'.  DowickS,  27,  200,  1418 
Vanquelin  v.  Bouard  1484,  1489 

Van  Reinisdyk  v.  Kane     531,  063,  664 
Van  Sandau  v.  Turner  27,  712 

Van  Straubenzee  v.  Monck  910 

Van  Wart  v.  WoUey  678 

Varicas  v.  French  429 

Vasie  /-.  Delaval  813,  814 

Vaughan  v.  Hancock  8H9 

Vaughan  v.  Martin  1202,  1203 

Vaughan  v.  "Worrall  1184 

Vaughan's  ca.se  313 

Vaughton  v.  Bradshaw  V.iXl 

Vaux  Peer.  573,  575,  576,  1346 

Vau.x  r.  Sheffer  1453 

Velasquez,  The  227 

Venafra  r.  Jolin-son  769 

Venables  v.  Schweitzer  1091 

Vent  V.  Pacey  795 

Verry  v.  Watkins  334,  340,  1232 

Vice  V.  Lady  Anson  411 

Vickers  v.  Hertz  147 

Victoria,  The  227 

Vidi  r.  Smith  504 

Villeboisnet  v.  Tobin  485 

Vincent  v.  Bp.  of  Sodor  &  Man        901 
Vincent  v.  Cole  369,  375,  377 

Vines  v.  Arnold  1456 

Vinev  V.  Bar.ss  307 

Vinnicombe  v.  Butler  905,  906 

Violet  V.  Pattou  872 

Viret  V.  Viret  886 

Vivian  v.  Little  1533 

Volant  r.  Soyer  420,  791 

Von  Stentz  v.  Comyn  178 

Vooght  ('.  Winch  114 

Vowles  V.  Young       560,  563,  564,  574, 

575 
Vulliamy  v.  Huskisson  .  566,  573 
Waddel,  ex  p.,  in  re  Lutscher  1105 
Waddilove  v.  Barnett  294 

Waddington  (•.  Bri.stow  893 

Wade  V.  Nazer  916 

Wade  i\  Simeon  1184 

Wade  V.  Tat  ton  935 

Wadeer  v.  East  India  Co.  815 

Wad  ley  v.  Bayliss  1025 

Wadsworth  r.  Bentlcy  1453 

Wadsworth  v.  Hamshaw  785 

Wadsworth  / .  Marshall  1054 

Wagstalf  f.  Wilson  678 

Wain  ('.  Bailey  .  404 

Wainman  v.  Kynman  928 

Waithman  c.  Wakelield  211 

Waithman  v.  Weaver  337 

Waketield  (;.  D.  of  Buccleuch  145 

Wakefield  v.  Ross  1177 

Wakeman  v.  West  1505 

Wakley  v.  Johnson  324 


(2840) 


TABLE  OF  CASES  CITED. 


cm 


Walcot  V.  Alleyn 
Walcott  ('.  Hall 
Waldridge  v.  Kennison 
Waldron  v.  Co;)mbe 
Waldrnu  r.  Jacob 
Waldi-oa  r.  Tuttle 
Waldron  v.  Ward 
Waldy  V.  Gray 
Walford  v.  Fleetwood 
Walker  v.  Bartlett 


PAGE 
216 

337 

689 
1517 

878 
560 
798 
496 
25 
891 


Walker  v.  Lady  Beauchamp      398,  555 
Walker  v.  Bennett  464 

Walker  v.  Bradford  Old  Bk.  849 

Walker  v.  Ih'oadstock  600 

Walker  v.  Butler  928 

Walker  -v.  Gardner  952 

Walker  v.  Gode  701 

Walker  v.  G.  W.  Ry.  Co.  840 

Walker  v.  Milne  81)1 

Walker  v.  Moore  1000 

Walker  v.  Poole  1189 

Walker  v.  Richardson  159,  861,  862,  864 
Walker  ;;.  Webb  1132 

Walker  r.  Wildman  792,  796 

Walker  v.  Wini>iield  1357 

Walker  v.  Witter  1489 

Walker's  case  682,  1180 

Wall's  case  198 

Wallace  v.  Brockley  951 

Wallace  v.  Cook  1358,  1510 

Wallace  v.  Fielden  227 

Wallace  v.  Kelsall  654,  736,  965 

Wallace  v.  Pomfret  1044,  1045 

Wallace  v.  Seymaur  914 

Wallace  v.  Small  689 

Waller  v.  Lacy  924,  927,  930 

Wallingford  Petition,  In  re  489 

Wallis  (•.  Littell  967 

Wall  is  ?;.  Smith  62 

Walpole  V.  Alexander    1126,  1127, 1128 
Walrond  p.  Hawkins  699 

Walsh  V.  Nally  951 

AValsh  I).  Trev'anion'  961 

Walsh  r.  Wils  m  1128 

Walsham  r.  Stainton  793 

Walsingham,  Ld.,  v.  Goodricke      784, 

795,  793 
Walter  v.  Bollman  617 

Walter  v.  Cubley  1551 

Walters.  Haynes  197 

Walters  v.  Morgan  888 

Walters  r.  Rees  1130,  1133 

Walton  V.  Chandler  951 

Walton  r.  Gavin  189 

Walton  ?•.  Green  672 

Walton  r.  Hastings  1549,  1559 

Walton  V.  Shelley  1142 

Walton  V.  Waterhonse  122 

Walton,  ex  parte,  re  Levy        864,  962 


PAGE 

Wambough  v.  Shenk  218 

Waukford  v.  Fotherley  721 

Ward  V.  Day  698 

Ward  V.  Dey  1216 

Ward  V.  Hobbs  1005 

Ward  V.  Johnson  1444 

Ward  V.  Ld.  Londesborough  202 


Ward,  Ld.,  v.  Lumley 
Ward  V.  Pearson 
AVard  v.  Pomfret 
Ward  V.  Ryan 
Ward  V.  Siulield 
Ward  (I.  Ward 
Ward  V.  Wells 
Warde  v.  Warde 
Wardell  v.  Fermor 
AVardeu  v.  Jones 
AVare  v.  Cumberledge 
AVarickshall's  case 
AVaring  v.  AA'aring 
AA'armsley  v.  Child 
Warner  v.  Mosses 
AVarner  v.  AA' illington 
AVarrall,  Re 
AVarren  v.  Anderson 
AVarren  v.  Stagg 
AVarren  v.  AVarren 
AVarren  Hastings  case 


861,  1553 

240,  247 

605 

124 

1229 

1352,  1463 

429,  1572 

797 

1574 

8S5 

890 

741,  742,  748 

347 

404 

468 

875,  876,  880 

1254 

1577,  1580 

975 

197 

1518 


AVarrender  v.  AVarrender  1476 
AVarrick  ;;.  Queen's  Coll.,  Ox.  539, 
543,  1283 
AVarriner  v.  Giles  1359 
AVarrington  v.  Early  1549 
AVarwick  v.  Bruce  893 
AVarwick  v.  Foulkes  323 
AVarwick  v.  Hooper  698 
AVarwick  v.  Queen's  Coll.  1283 
AVarwick  v.  Rogers  1555 
AA'ason  v.  AValter  4 
AVaterford,  AVexford,  AVicklow  &  Dub- 
lin Ry.  Co.  V.  Pidcock  l.)15 
AVaterford,  Corp.  of,  v.  Price  1511 
AVaterford  Ry.  Co.  v.  AA^olselv  1515 
AVaterford,  Estate  of  M.  of.  Re  !)95 
AA^^terloo  Bridge  Co.  v.  Cull.  142 
AVaterman  r.  Soper  1 !  1 
AA^aterpark  ?;.  Fennoll  1025,  1026 
AA^aters  v.  Earl  of  Thanet  923 
AA'aters  D.  PTowlett  512 
AVaters  v.  Thorne  89 
AVaters  r.  Tom  kins  928,  929.  932 
AA^atkins,  Re  910 
AA^atkins,  ex  parte  1483 
AA^tkins  )'.  Morgan  2  IS 
AA^atkins  r.  Nash  1560 
AVatkins  r.  AVymill  111 
AVatson  v.  Arundell  910 
AVatson  tt.  Clark  224 
Watson  V.  Gray  144 


(2841) 


CIV 


TABLE  OF  CASES  CITED. 


PAGE 

Watson  V.  King     220,  678,  1358,  1509 

Watson  V.  Lane  124,  125 

Watson  V.  Little  1424 
Watson  V.  Spratley             890,  891,  892 

Watson  V.  Threlkeld  721 

Watson  v.  Wace  723 

AVatson  v.  Watson  1043 

Watson  V.  Wooduiah  532 

Watters  v.  Smith  1444 

Watts  V.  Aiuswortb  .           880 

Watts  V.  Fraser  324 

Watts  V.  Kelson  14G 

Watts  V.  Lawson  689 

Watts  V.  Thorpe  668 

AVaugh  V.  Bussell  •           1551 

Waugh  i".  Carver  203 

Waugh  V.  Cope  928 

Wayman  r.  Hilliard  689 

Waymell  r.  Keed  908 

Weale  v.  Lower  217 

Weall  V.  Eice  1043,  1045 

Weaver  v.  Price,  1427 

Webb,  lie  902 

Webb  V.  Austin  122 

Webbf.  Bird  97,  156 

Wel)b  v.  Bornford  478 

Webbr.  Byng  1019 

Webb  V.  East  1523,  1524 

Webb  V.  Fox  147,  148 

Webb  V.  Haycock  570 
Webb  V.  Heme  Bay  Improving  Com. 

723 

Webbu.  Hunell  It 45 
Webb  V.  Manch.  &  Leeds  Ry.  Co.   1210 

Webb  V.  Paternoster  83'j 

Webb  r.  Pctts  544 

Webb  f.  Plummer  1011 

Webb  V.  Salmon  980 

Webb  V.  Smith  655,  788 
Webb  V.  Tavlor             1130,  1131,  1134 

Webb's  Estate,  Re  217,  218 

Webber  1-.  Corbet  t  1028 

Webber  v.  East  Ry.  Co.  1210 

Webber  r.  Lee  889 

Webber  r.  Stanley  1040 

Webster  v.  Bray  20,'J 

Webster  v.  Cecil  971 

Webster  v.  Cook  174 

Webster  r.  Lee  1454 

Web.ster  v.  Whewall  1521 

Wedderburne's  case  313 

Wedge  V.  Berkeley  43,  54 

Wedgwood's  case  1510 

Weeks  v.  Argent  797,  803 

Weeks  v.  Maillardet  1562 

Weeks  v.  Propert  1009 
Weeks  v.  Sparke    53H,  541 ,  543,  544, 547 

AVeidman  ;;.  Kohr  600,  683 

AVeiduer  !•.  Schweigart  196 


AVelch  V.  Barrett 
AVelch  r.  Maiideville 
Weigh  r.  Nash 
Welch  V.  Phillips 
AVelch  V.  Seal)orn 
Weld  V.  Hornby 


PAGE 

613 
654 

1467 
181 
197 

1025 


Welfare  v.  Lond.  &  Brigh.  Ry.  Co.  207 
Welford  r.  Beezely  878 

Wei  land  Can  Co.  r.  Hathaway  384,  707 
Wetland  v.  Ld.  Middleton     1358,  1365, 

1510 
Wells  V.  Fisher  1162 

Wells  V.  Fletcher  1162 

Wells  V.  Horton  888 

AVells  ('.  Jesus  College  543,  547 

Wells  V.  Kingston-upi,n-Hull  840,  889 
Wells  V.  AVells  962 

Wells  r.  AVren  489 

AVelnian  r.  AVelman  177,  970 

Welstead  v.  Levy  37,  G66,  684,  688 

Wemyss  v.  Hoi^kins  1462 

AVeuman  v.  Mackenzie  553, 1446, 1496 
AVentworth  r.  Lloyd  138 

AVequelin  v.  AVequelin  491 

AVest,  Re  907 

West  r.  Baxendale  42,  245 

West  V.  Blakeway  720,  972.  973 

West  V.  Lawday  1037 

West  v.  Aloorc  184 

AVest  V.  Rav  901 

West  V.  Steward  1558, 1560, 1561, 1562 
West  Cambridge  r.  Lexington  600 

West  of  Canada  Oil,  &c.,  Co.,  Re  460 
West  Cornwall  Ry.  Co.  v.  Alowatt  1515 
AVest  Jewell  Tin  Mining  Co.,  In  re  1596 
AVest  of  Eng.  Bk.  r.  Canton  Ins.  Co. 

1519 
AVest  London  Com.  Bk.  v.  Kitson  1009 
Westmoreland  v.  Huggins  463 

AVestobv  r.  Day  8,  1445 

AVeston"  Re  913 

AVeston's  case,  In  re  1596 

Weston  r.  Emes  1'79 

AVetherall,  ex  parte  721 

Wetherell  r.  Langston  880 

AVey  V.  A^illy  9 

AVhaley  v.  Carlisle  24,  597 

AVhalley  v.  Pepper  1135 

Wharam  r.  Riiutledge  1545 

AVharram  v.  AVharram  403 

AVharton  Peer.  1339,  1417 

AVharton  r.  Mackenzie  60 

AVhateley  v.  Crowter  480,  482 

AVhateley  i\  Spooner  1017,  1031 

Whatman,  Re  10:!7 

AVheatcroft's  case  704 

AVheatley  r.  AVilliams  807 

AVheeldon  r.  Burrows  146 

AVheeler,  In  re  918 


(2842) 


TABLE  OF  CASES  CITED. 


cv 


"Wheeler  v.  Alderson 
Wheeler  v.  Atkins 
Wheeler  v.  Cullier 


Cox 

Le  Marchant 

Lowth 


Wheeler  ( 
Wheeler  i 
Wheeler  v 
Wheeling's  case 
Whicker  /•.  Hume 
Whiifeu  v.  Hartwright 
Whippy  V.  Hillary 
Whistler  v.  Forster 
Whitaker  v.  Izod 
Whitaker  v.  Tatham 


PAGE 

178,  512,  1208 
493 
875 
1130 
1525 
1339 
745 
1433 
G88 
925 
729 
1253 
1028 


787, 


228 


419, 


Wisbey     26,  109,  171,  372 


Whitaker 

Whitcomb  v.  Whiting 

White,  Re 

White  V.  Birch 

White  V.  Cuyler 

White  V.  Dowling 

White  V.  Greenish 

Witite  V.  Hawn 

White  V.  Lisle 

White  r.  M'Dermott 

White  V.  Morris 

Wliite  V.  Parkin 

White  V.  Proctor 

White  V.  Repton 

White  V.  Saver 

White  V.  Sharp 

White  V.  Smith 

White,  ex  parte,  re  Tomney 

White  V.  Wilson 

White's  case 

AVhiteacre  t'.  Symonds 

Whitehead  v.  Clifford 

Whitehead  v.  Scott 

W'lntehead  r.  Tattersall 

Whitehouse  r.  Hemmant 

White  ley  v.  King 

W^hitelocke  v.  Baker 

Wliitelock  v.  Musgrove 

AVhitefield  v.  Brand 

Whitdeld  v.  South-East  Ry.  Co 


Whitford  v.  Tntin 

Whitley  v.  Gough 

Whitmore  v.  HumjDhries 

Whitnash  v.  George 

Whittaker  r.  Edmunds 

Whittaker  v.  Jackson  1442,  1449,  1451 

Whitting,  re,  ex  p.  Hall  849 


G55 

180,  907 

1037 

845 

670 

731 

1181 

541,  543 

183,  184 

646,  647 

977 

948 

911 

995 

1344 

1263 

1464 

216,  981 

745 

58 

863 

379,  416,  514 

671 

1593 

182 

555,  560 

1575,  1578 

378 

140, 

842 

375 

861) 

147 

591,  6>!1 

345 


Whittuck  V.  AVaters 
Whitwell  V.  Perrin 
Whitwell  V.  AVyer 
Whitwill  r.  Sclieer 
WhitATorth's  case 
Whyman  r.  Garth 
Whyte  V.  Ahreus 
Whyte  V.  Rose 


568,  575,  1355 

227 

644 

245,  250,  253 

1091,  1092 

15G6 

1532,  1538 

23,  25,  1465,  1484 


PAGE 

24 

949 

836 

1456 

882 

129 

1004 

995 

959 

1507 

1259 

■  1378 

430,  491 

927,  937 

8S4 

121 

55,  249,  252 

46,  698 

869 


1257, 


Wickens  v.  Goatley 

Wickham  v.  M.  of  Bath 

Wickham  t\  Hawker 

Wickham  v.  Lee 

Wickham  v.  AVickham 

Widdow's  Trusts,  Re 

AVieler  r.  Schillizzi 

AVigglesworth  r.  Dallison 

AVight's  Mortgage  Trusts,  Re 

Wihen  v.  Law 

AVike  V.  Lightner 

AVilberforce  r.  Hearfield 

AA'ilbur  v.  Selden   ' 

AVilby  V.  Elgee 

Wildes  V.  Dudlow 

AViles  r.  AA'oodward 

Wilkin  r.  Reed 

AVilkiiis  i:  Jadis 

AVilkins  v.  Stephens 

AVilkinson  v.  Evans 

AVilkinson  v.  Gordon 

AVilkinson  v.  Johnson 

Wilkinson  r.  Kirby 

AVilkinson  r.  Storey 

Wilkinson  r.  Verity 

Wilkinson,  In  re 

Willeri'ord,  Re 

AVilliams,  Re 

Williams,  ex  parte 

AVilliams  r.  Armroyd 

Williams  r.  Ashton 

Williams  v.  Brjant 

AVilliams  i'.  Byrnes 

Williams  v.  Callender 

AVilliams  v.  Davies 

AVilliams  v.  E.  Ind.  Co. 

AVilliams  v.  Evans 

AVilliams  v.  Eyton 

Williams  v.  Farrington 

AVilliams  t\  Geaves 

AA'illiams  v.  Griffith 

AVilliams  v.  Griffiths 

AVilliams  v.  Gutch 

AVilliams  v.  Hulie 

AVilliams  i\  Innes 

AVilliams  v.  Jones 

Williams  v.  Jordan 

AVilliams  v.  Lake 

AVilliams  v.  Morgan 

AVilliams  r.  ISlorris 

AVilliams  r.  IMudie 

AVilliams  v.  Pigott 

AVilliams  r.  Smith 

AVilliams  v.  Steele 

AVilliams  v.  Stern 

AVilliams  v.  Swansea  Canal  Navi; 


877 

1445 

1555 

1449 

63 

93 

918 

910 

907 

1049 

1482 

180 

285,  725 

875 

337 

,  362 

343 

,  914 

1345 


360 

134, 

895 

152, 


92' 


18 


Williams  v.  Thomas 
Williams  v.  Tyley 


1248 
592 

,  930 

929 

8 

1194 
668 

,  301 
875 
875 
365,  543 
835 
785 
722 
44,  924 

1132 
973 

;.  Co. 

1392 
678 
917 


(2843) 


CVl 


TABLE  OF  CASES  CITED. 


PAGE 

Williams  r.  "Walsby  845 

Williams  v.  Wheeler  888 

Williams  v.  Wilcox  159:2 

Williams  v.  Williams  5,  185,  232.  355, 
740,  869.  885,  914,  1044 
AVilliams  v.  Williams  &  Padlield     746 
Williams  v.  Wilson  '  149G 

Williams  r.  Youn "husband  398 


Williamson  v.  Allison 
Williamson  v.  Barton 
Williamson  v.  Scott 
Willingham  r.  Matthews 
Willins  c.  Smith 
Willis  V.  Bernard 
Willis  V.  Jernegan 
Willis  V.  Newham 
Willis  V.  Peckham 
Willman  v.  Worrall 
Willmett  V.  Harmer 
Willock  r.  Noble 
Wi  Hough  by  v.  Willoughby 
AVillson,  Ee 
Wilson  V.  Allen 
Wilson  r.  Beddard 
Wilson  V.  Boerem 
Wilson  V.  Bowie 
Wilson  V.  Butler 
Wilson  V.  Church 
Wilson  V.  Collum 
Wilson  V.  Lady  Dunsany 


2G2,  2.S 
98? 

7:;g 

1127,  1130 
924 
518 
702 

9:;i 

1059 

1574, 1580 

134 


379, 


Wilson  V.  Finch  Hatton 
Wilson  V.  Ford 
Wilsim  V.  Hoare 
Wilson  V.  ^litchcll 
Wilson  V.  N.  &  Banb.  Ry. 
Wilson  V.  O'Leary 
Wilson  V.  Kastall 
Wilson  V.  Robinson 
Wilson  ('.  Rogers 
Wilson  r.  Sevell 

Sheriffs  of  London 

Turner 

Wallani 


921 

5,28 

1105 

157 

909 

626 

1545 

114 

474 

1571 

14S5 

294,  1002 

211 

54 

672 

796 

1042 

787,  798,  803 

323 


AVilson  V. 
Wilson  V. 
Wilson  r. 
Wilson  V.  "Wilson 
Wilson's  Trusts 
Wilton  V.  Dunn 
Wilton  V.  Webster 
Wiltshire  r.  Sidford 
Wiltzie  V.  Adamson 
Windle  v.  Andrews 
Wing  V.  Angrave 
Winn  V.  Ball 
Winn  V.  Patterson 
Winsor  v.  Duinford 
Winsor  v.  R. 
Winter  v.  Miles 
Winter  v.  Wroot 
Winterbottom  v.  Ld.  Derby 
Wiuterbottom  v.  Ingram 


1281 
860 

1133 

678 

864 

149,  446 

1476 
125,  294 
518 
144 
704 
949 
222,  962 
877 
582 

1312 


PAGE 

Wintle,  Re  1508 

Wisden  v.  Wisden  1053 

Wise  V.  Great  West.  Ry.  Co.  938 

Wiseman's  case  673 

Wishart  v.  Wvllie  141 

Witham  r.  Taylor  593 

Withnell  r.  Gartham  543,  1025 

Witmer  r,  Schlatter  1424 

Witt  v.  Witt  &  Klindworth  51() 

AVogan  v.  Small  1209 

Wolf  V.  Wyeth  492 

Wolfe  V.  Washburn  1517 

Wolff  r.  KopiK-U  882 

AVolff  r.  Oxholm  1478 

WoUaston  r.  Ilakewill  .388,  1184 
Wolverhampt  )n  X.   W.  Works  Co.  r. 

Hawkeslurd  483 
AVolverton  .Mortgaged  Estates,  Re  1033 

Womersley  v.  Dally  306 

Wood.  Re  107 

Wood  v.  Anglo-Italian  Bk.  1538 

Wood  v.  Duke  of  Argyll  722 

Wood  V.  Beard  852 

Wood  V.  Braddick  531.  655 

Wood  ('.  Cooper  1199,  1202 

Wood  V.  Drury  1567 

Wood  r.  Fitz  19 

Wood  V.  .Tackson  1 472 

Wood  r.  Lake  836 

Wood  ;;.  Lcadbitter  835,  836 

Wood  V.  Mackinson  1221,  1222 

Wood  V.  Manly  ^:i(i 

Wood  V.  Alidgiey  873,  918 

Wood  r.  Peer    '  498.  499 

Wood  V.  Priestner  1019 

Wo.d  V.  Rowclifle  1040 

Wood  V.  Scarth  971 

Wood  V.  Smith  227 

Wood  V.  Underbill  62 
Wood  V.  Wood                    181,  403,  921 

Wood's  Estate,  Re  212 

Woodbeck  r.  Keller  819,  824 

Woodbridge  r.  Spooner  980 
Woodcock  r.  Houldsworth      19 
Woodcraft  v.  Kinaston 
Woodfine,  "Re 
Woodford  v.  Whiteley 
Woodgate  v.  Potts 
Woodham  r.  Edwards 
Woodley  r.  Coventry 
Wood  ley,  Re 
Woods  t:  Dean 
Woods  V.  Lamb 
Woods  V.  Woods 


1152    Woodward,  Re 


4 
518 
156 
295 


Woodward  r.  Buchanan 
Woodward  r.  Cotton 
Woodward  r.  I^arking 
W<!olam  I'.  Ilcarn 


1210 

1319 

1225 

404 

358 

9 

727 

90M 

247,  ()98 

215 

218,  795 

917 

304 

1303,  1.304 

73.5 

965,  972 


(2844) 


TABLE  OF  CASES  CITED. 


evu 


PAGE 

Woolley  V.  N.  Lond.  Ry.  Co.  15'27 

Woolmer  v.  Devereux  15'22 

Woollier  V.  Devereux  152i 
Woolway  v.  Kowe              683,  685,  687 

Wootley  V.  Gregory  861 

"Worcester's  L'Evesque  de,  case  8 

Worlich  c.  INlassy  23 

Worsley  v.  Filiskcr  2S 

"Worthington  v.  Grimsditch  928 

Worthington  r.  Hylyer  1038 

Worthingtou  v.  8iullow  1009 

Worthingtou  v.  WarriDgton  1000 

Wotton,^lie  908 

Wray  v.  Steele  868 

Wray,  In  re  178 

Wright  V.  Colls  1502 

Wright  V.  Court  530 

Wright  V.  Crookes  988,  981 

Wright  V.  Doe  d.Tatham  366,  367,  423, 

425,  510,  511,  512,  522,  523,  538. 
1441,  1575 

Wrigli^  V.  Goff  970 

Wright  V.  Goodlake  484 

Wright  V.  Graham  1344 

Wright  V.  Holdgate  129,  817 

AVright  V.  Lainson  186 

Wright  (,'.  Littler  626 
Wright  V.  Lond.  Gen.  Omnibus  Co.  146  3 

Wright  V.  Ld.  Maidstone  404 

Wright  V.  ]\Iills  108 
Wright's  IMortgage  Trusts,  Re          958 

Wright  II.  Netherwood  221 

Wright  V.  Pearson  690 

AVright  V.  Pulham  1421 

Wright  V.  Rogers  906 

Wright  r.  Rudd  544 

Wright  V.  Sanderson  905 

Wright  V.  Sarmuda  221 

Wright  V.  Shawcross  44 

Wright  V.  Snowe  721 

Wright  V.  Stavert  889 

Wright  V.  Vanderplank  173 

Wright  V.  Vernon  1537 

Wright  V.  Wilcox  361 

Wright  V.  Woodgate  140 

Wright,  Re  907 

Wrightson  v.  Calvert  1039 

Wyatt  V.  Bateman  430,  1574 

Wyatt  V.  Gore  814 

Wyatt  V.  Harrison  145 

Wyatt,  Re  911 

Wych  V.  Meal  664 


Wyld  t\  Hopkins 
V/yllie  V.  IMott 
Wyndham's  divorce  bill 
Wynne  v.  Tyrwliitt  , 
Xenos  v.  Wiokham 
Yabsley  r.  ]S"ol)le 


PAGE 

722 
1097 

518 

112,  598 

1560 

665 

Yarbarough  c.  Bk.  of  England  842 
Yardley  v.  Arnold  1183,  1184 

Yates,  ex  p.,  re  Smith  1549 

Yates  V.  Carnsew  651 

Yates  V.  Maddan  183 

Yates  V.  Pym  991,  1010 

Yates  V.  Thomson  69 

Yea  V.  Fouraker  924 

Ycarsley  v.  Heane  1135 

Yearwood's  Trusts,  Re  817 

Yeatman  v.  Demx^sey  1083 

Yeatman,  ex  p.  788 

Yeats  V.  Pim  1010 

Yeats  V.  Yeats  10:5:) 

Yelverton  v.  Yelverton  114:3 

Yeomans  v.  Williams  7:21 

York  V.  Brown  1502 

Yoter  V.  Sanno  816 

Young  V.  Black  1448 

Young  V.  Cawdrey  737 

Young  V.  Clare  Hall  603 

Y^oung  V.  Cole  1004 

Young  V.  Honner  1587 

Young,  ex  p.,  re  Kitchin  680 

Young  %).  Corp.  of  Leamington  848 
Young  V.  Lynch  1287 

Young  V.  Murphy  336 

Young  V.  R.  315 

Young  r.  Raincock  114,  119,  121 

Young  V.  Schuler  949 

Young  V.  Smith  6Qo 

Young  V.  Turing  200 

Young  V.  Wright  677,  678 

Younge  v.  Hcmner  1587 

Yrisarri  v.  Clement  3 

Ystalyfera  Iron  Co.  v.  Neath  &  Brecon 
Ry.  Co.  1395 

Zachakias  r.  Collis  178 

Zariri  v.  Thornton  482 

Richev  Ferraris,  Countess  de,  v.  M.  of 
Hertford  904,  910,  919 

Zonch  Peer.  557,  573 

Zouch  V.  Clay  1559,  1561 

Zouch  ('.  Wiilingale  54,  699 

Zugasti  V.  Lamer  8 

Zulueta  V.  Vinent  727 


(2845) 


TABLE  OF  STATUTES  CITED. 


PAGE 

PAGE 

46  Ed.  3  ■ 

127:2 

()  A.  c.  2,  Ir. 

959 

25  H.  8,  c.  13,  ss.  2,  13 

28;; 

c.  7,  s.  3 

101 

c.  14 

820 

c.  18 

1 

218 

27  H.  8,  c.  16 

956 

c.  35 

959 

1  eS:  2  P.  &  M.  c.  13 

762 

s.  17 

1408 

2  &  3  P.  &  M.  c.  10 

762 

7  A.  c.  11 

98 

5  El.  c.  9,  s.  12 

1055,  ids;; 

c.  20 

959 

c.  26 

956 

ss.  1,  5 

949 

13  El.  c.  5 

170 

ss.  6,  12,  19 

1403 

27  El.  c.  2 

694 

c.  21 

822 

31  El.  c.  5,  s.  5 

98 

s.  5 

761 

1  J.  1,  c.  11,  s.  2 

219 

s.  11 

1151, 

1167, 

1273 

7  J.  1.  c.  12 

620 

10  A.  c.  IS 

1573 

21  J.  1,  c.  16 

92 

606 

,  656,  658 

1  G.  1 ,  St.  2,  c.  5,  s.  8 

101 

s.  3 

92,  658 

11  G.  1,  c.  30,  s.  16 

102 

c.  27 

137 

2  G.  2,  c.  23,  s.  23 

414 

IOC.  1,  e.  IS.  Ir. 

762 

5  G.  2,  c.  30,  s.  1 

280 

12  C.  2,  c.  24,  .ss.  8,  9 

949 

7  G.  2,  c.  8,  s.  9 

3;:o 

14  &  15  C.  2,  c.  2,  Ir. 

1505 

8  G.  2,  c.  6 

959 

17  &  18  C.  2,  c.  2,  s.  5,  Ir. 

1505 

s.  21 

1408 

19  C.  2,  c.  6,  s.  2 

218 

9  G.  2.  C-.  5,  Ir. 

1410 

22  &  23  C.  2,  c.  10 

184 

c.  3(),  s.  1 

949 

,  955 

29  C.  2,  c.  3 

853 

s.  3 

955 

s.  1 

854,  947 

10  G.  2,  c.  8 

390 

s.  2 

854 

11  G.  2,  c.  19,  s.  14 

843 

s.  3 

856.  947 

ss.  20, 

21 

303 

s.  4    8- 

-0, 

871, 

888,  894, 
947,  974 

14  G.  2,  c.  6 

17  G.  2,  c.  3,  s.  3 

271 
1301 

s.  5 

901 

25  G.  2,  c.  4 

959 

ss.  7,  8,  9 

867.  946 

c.  14,  Ir. 

1410 

s.  17   8 

ro, 

871, 

892,  8J4, 

2  G.  3,  c.  28 

1426 

895 

,  947,  974 

5  G.  3,  c.  21,  s.  1,  Ir. 

1273 

c.  7,  s.  6 

411 

6  G.  3,  c.  36 

348 

7  W.  3,  c.  3 

98.  812 

c.  53,  s.  3 

822 

s.  1 

1277 

9  G.  3,  c.  16 

95 

s.  2 

743,  819 

11  &12G.  3,  c.  8,  Ir. 

1320 

s.  4 

819 

12  G.  3,  c.  19,  s.  3,  Ir 

1410 

ss.  5,  6 

98 

13  G.  3,  c.  63     448,  451, 

469, 

1110 

s.  8 

313,  821 

s.  40 

448 

450 

451, 

c.  12,  Ir. 

853 

1330 

s.  1,  Ir. 

855,  856 

ss.  42, 

45 

449 

s.  3,  Ir. 

901 

s.  44 

450 

s.  7,  Ir. 

870 

15  G.  3,  c.  39 

1121 

ss.  10,  11, 

12 

,  Ir. 

868 

17  G.  3,  c.  56,  s.  10 

349 

s.  21,  Ir. 

870.  871 

24  G.  3,  c.  25,  ss.  74, 

75 

1124 

12  &  13  W.  3,  c.  2,  s. 

3 

1248 

s.  78 

450 

13  W.  3,  c.  3,  s.  2 

821 

s.  81 

450 

112! 

2  &  3,  A.  c.  4 

958 

26  G.  3,  c.  57 

1124 

4  A.  c.  16,  s.  20 

949 

s.  28 

450 

5  A.  c.  18 

958,  1408 
(28 

s.  38 

46) 

1571 

TABLE  OF  STATUTES  CITED. 


CIX 


PAGE 

PAGE 

32  G.  3,  c.  60,  ss.  1,  2 

65 

7G. 

4,  c.  64,  s.  3 

438,  769 

ss.  3,  4 

66 

s.  4 

776,  1048 

33  G.  3,  c.  67,  s.  8 

101 

s.  6 

776,  1048 

34  G.  3,  c.  CA 

1431 

s.  14 

286 

38  G.  3,  c  26,  s.  2 

1088 

s.  19 

288 

c.  87 

083 

s.  22 

1062 

39  &  40  G.  3,  c.  93    744 

,  823,  1151, 

s.  23 

1062,  1073 

1168,  1273 

ss.  24,  25, 

27 

1062 

41  G.  3,  c.  90,  s.  9 

1304 

s.  26 

1065 

c.  109,  s.  11 

143 

! 

s.  28 

1071,  1072 

ss.  33.  34 

112:; 

ss.  29,  30 

1072 

s.  35 

1377 

s.  31 

1048 

42  G.  3,  c.  58 

450 

7  &  8  G.  4,  c.  27 

348 

s.  3 

450,  1124 

c.  28 

331 

c.  107,  s.  1 

348 

1 

s.  11 

1385 

43  G.  3,  c.  85 

104 

c.  29,  s.  25 

271,  283 

c.  140 

1084,  1086 

c.  30,  s.  17 

21 

44  G.  3,  c.  102 

1085 

c.  53,  s.  17 

188 

45  G.  3,  c.  92 

1U81 

s.  42 

1273 

s.  3 

1076 

s.  74 

1121 

s.  4 

1060,  1076 

9G. 

4,  c.  14,  s.  1    93 

,  532,  656,  676. 

46  G.  3,  c.  37 

1252 

921,  947 

50  G.  3,  c.  102,  s.  5,  Ir. 

432,  447 

s.  3 

606,  607,  608 

52  G.  3,  c.  146 

1271 

s.  4 

657 

s.  1 

582 

s.  5 

932 

s.  5 

582,  129!J 

s.  6 

933,  946 

53  G.  3,  c.  141 

724 

s.  7 

871 

54  G.  3,  c.  56,  s.  4 

946 

c.  15 

23 

5,  256,  260 

55  G.  3,  c.  194 

354 

c.  31 

105 

56  G.  3,  c.  87,  s.  3,  Ir. 

432,  447 

s.  22 

219 

c.  139,  ss.  1,  2 

165 

c.  41,  ss.  29, 

30 

268 

57  G.  3,  c.  90,  s.  1 

277 

c.  54,  Ir. 

763 

60  G.  3  &  1  G.  4,  c.  1,  s.  7 

101 

s.  2,  Ir. 

1049 

c.  4,  s.  8 

1273 

s.  4,  I 

r. 

445,  776, 

1  &  2  G.  4,  c.  24,  Ir. 

743,  819 

1048 

s.  2,  Ir 

744,  823, 

s.  6,  Ir. 

776 

1151, 

1168,  1273 

s.  34, 

Ir. 

1048 

3G.  4,  c.  39,  ss.  1,  2,  3,  5,  6     956, 

c.  69,  s.  4 

99,  EiTofa 

1280 

s.  6 

1050 

c.  128,  ss.  55,  57 

852 

s.  9 

277 

ss.  72,  73 

1301 

c.  77,  s.  2 

1301 

4  G.  4,  c.  76,  s,  21 

101 

10  G 

4,  c.  34,  s.  23,  Ir. 

1165 

5  G.  4,  c.  83,  s.  4 

1166 

c.  50,  s.  63 

957 

s.  9 

1050 

c.  cxxiv. 

1413 

c.  84,  s.  22 

1072 

11  G. 

4  &  1  W.  4,  c.  20, 

ss.  48—50  901 

s.  24  . 

1385 

c.  40 

184 

c.  96,  ss.  2,  9 

1109 

c.  66, 

s.  2 

1     278 

6  G.  4,  c.  16,  s.  75 

708 

c.  6i^ 

1422 

c.  50,  s.  9 

1299 

1  W. 

4,  c.  22 

436 

469,  1342 

s.  19 

1300 

s.  1 

451 

s.  21 

1168 

s.  2 

1110 

s.  23,  24 

501,  505 

s.  6 

1085 

c.  87,  s.  20 

1333 

1  »&  2  W.  4,  c.  32,  s.  23 

1153 

c.  94 

147 

s.  42 

354 

7  G.  4,  c.  46,  ss.  4,  6 

1375,  1513 

s.  44 

1050 

s.  9 

286 

c.  37,  ss.  23, 

24 

939,  946 

s.  13 

95 

c.  44,  s.  8,  Ir. 

1121 

c.  64 

763 

c.  58 

726 

s.  2 

438 

(28^ 

17) 

c.  IxxW. 

1413 

ox 


TABLE  OF  STATUTES  CITED. 


2W. 


PAGE 

4,  c.  1,  ss.  15,  20,  22  1270,  l?,m 


s.  21 

957 

s.  2(J 

1405 

c.  4 

694 

c.  10,  s.  3 

349 

2  &  3  W.  4,  c.  71,  ss.  1,  2,  3 

97,  938 

ss.  4,  7 

97 

s.  6 

97,  151 

c.  87,  s.  32 

1408,  1410 

c.  93,  s.  1 

1097 

c.  100 

96 

2  &  3  W.  4,  c.  100,  s.  1 

938 

s.  8 

151 

c.  107 

268 

3  &  4  W.  4,  c.  15 

64 

s.  2 

354 

c.  22,  ss.  26,  27, 

29   1124 

c.  27 

95 

ss.  2,   16,  17,  24, 

25,  29,  30,  33    95 

s.  14   935,  936,  946 

s.  28      96,  658 

s.  40        935 

c.  41,  s.  7        1192 

s.  19        1096 

c.  42,  s.  3   97,  608,  658, 

937,  947 

s.  4  97 

s.  5   97,  607,  937 

s.  11        725 

ss.  23,  24     235 

ss.  26,  27    1139 

s.  39   1108,  1344 

s.  40        1108 

c.  49  1181 

c.  63,  s.  1         165 

c.  74,  ss,  41,  46,  49   957 

ss.  51,  52,  59  957 

c.  82  1181 

c.  87,  s.  1         959 

s.  2     959,  1377 

s.  4        1377 

4  &  5  W.  4,  c.  22  177 

c.  30,  ss.  10,  11    1378 

c.  38,  s.  12       1082 

c.  76  1120 

s.  18        1301 

ss.  39,  81     944 

s.  79        943 

c.  92,  s.  79  Ir.     1314 

5  &  6  W.  4,  c.  50,  s.  40        1301 

s.  73  1426 
c.  54  1434 

c.  62  1181 

c.  69  1120 

s.  7         840 

6  &  7  W.  4.  c.  14,  1320 

s.  2,  11.31 
c.  71,  ss.  2,  64     1378 

(2848) 


PAGE 

6  &7  W. 

1,  c.  75,  s.  36 

1143 

c.  76,  s.  19 

1246 

c.  85,  s.  5 

1291 

s.  23 

949 

s.  37 

1401 

s.  41 

99 

c.  86,  s.  31 

949 

S-.  35,  36 

,  37  1:290, 
1388 

s.  38  12 

1368,1371, 

1508 

s.  41 

99 

c.  89,  ss.  3,  6 

1102 

c.  96 

1120 

s.  5 

1301 

c.  106,  s.  9 

1100 

c.  106,  s.  10 

1101 

s.  19 

10,  1318 

s.  21 

1318 

c.  Ill 

331 

c.  114,  s.  4 

1274 

c.  115 

1345 

s.  29 

143 

c.  116,  s.  105, 

Ir.   1061 

ss.  106,  107,  Ir.  1072 

7  W.  4  &  1  v.,  c.  22,  s.  5 

1401 

s.  8 

1508 

c.  26,  ss.  1, 

9     900 

s.  7 

128 

ss.  10 

11   900, 
9il 

ss.  12 

13    901 

ss.  14- 

-17  1143 

ss.  18 

—20   913 

s.  21 

918 

s.  22 

920 

ss.  24- 

-33  1046 

s.  34 

12?,  900, 
919 

c.  36,  ss.  25, 

23    189 

c.  44 

1063 

c.  50 

1120 

c.  68,  ss.  2, 

3     1103 

c.  83,  ss.  1, 

2          1299 

c.  85,  s.  2 

105 

s.  3 

101 

s.  11 

272 

1&2V.,  c. 

25,  s.  2 

1120 

c. 

56,  s.  121,  Ir. 

11 

o. 

77 

1181 

c. 

94,  ss.  1,  2,  20 

1270 

s.  9 

1266 

s.  11 

12 

s.  12 

1266,  1310 

s.  13 

14,  1310 

c. 

ci. 

1413 

c. 

105 

1180 

c. 

110,  s.  19 

1280 

2&3V.,  c. 

11,  ss.  3,  8,  9 

1280 

TABLE  OF  STATUTES  CITED. 


CXI 


PAGE 

PAGE 

2&3V. 

,  c.  47,  s.  24 

1426 

6&7V.,  c.  18,  s.  49 

13U0 

c.  71,  s.  40 

1495 

s.  62 

943,  946 

s.  53 

94 

ss.  66, 

68 

1315 

c.  84 

1120 

s.  100 

199,  943 

3&4V. 

,  c.  9,  s.  1 

1392 

c.  22 

1172 

c.  31,  s.  1 

1345 

c.  38,  s.  9 

1346 

c.  59,  s.  1 

1140 

s.  14 

•1318 

s.  2 

1196 

c.  40,  s.  29 

1050 

s.  3 

1195 

c.  54,  Ir. 

96,  935 

s.  4 

1225 

c.  66 

956,  1280 

c.  65 

1318 

c.  68,  s.  17 

351 

s.  9 

1098 

c.  73,  s.  8 

958 

c.  72.  s.  4 

100 

ss.  11, 

23 

:298 

c.  82,  s.  2 

1280 

s.  20 

958,  1298 

c.  86. 

829 

s.  37 

414 

s.  17 

1097 

c.  82,  s.  5 

1111 

s.  20 

100 

ss.  6,  7 

1112 

c.  92 

1291,  1355,  1358 

c.  83,  s.  2 

i^78 

s.  5 

1292 

c.  85 

662,  1140 

ss.  G 

20        1355 

s.  1 

628, 

1087,  1144 

ss.  9 

10.  11   12,  1368 

c.  86,  s.  16 

1379,  1513 

c.  92,  ss.  12- 

-16        1369 

s.  20 

349 

s.  17 

1363,  1370 

s.  23 

941,  946 

c.  96,  ss.  22, 

29,  30      349 

s.  28 

1462 

c.  97.  ss.  7, 

9,  10       1412 

c.  94,  ss.  1,  2 

3 

22 

c.  105,  Ir. 

452,  469,  1342 

c.  C6,  s.  2 

716.  780 

s.  12, 

Ir.         956 

c.  9Li,  s.  6 

106 

ss.  48 

49,  Ir.      2::5 

s.  7 

136,  779 

ss.  51 

52,  Ir.     1139 

c.  98,  s.  4 

451,  1330 

s.  63, 

Ir.    1108,  1344 

7&8V.,c.7 

1246 

s.  64, 

Ir.         11C8 

c.  12,  s.  8 

1297, 

1359,1372, 

s.  66, 

Ir.     452,  1110 

1513 

s.  67, 

Ir.         1110 

c.  22,  ss.  2,  3 

349 

s.  69, 

Ir.         1125 

c.  27,  Ir. 

96,  935 

s.  71, 

Ir.        1085 

c.  29 

99 

c.  108,  ss.  125,  127,  Ir.   1415 

c.  32,  s.  15 

1419 

c.  110,  s.  7 

1375 

c.  33,  s.  6 

199 

4&5V. 

c.  45,  ss.  13, 

14        1124 

c.  45,  s.  2 

98,  1024 

5&6V. 

,c.  22 

20 

c.  65,  ss.  30— 

-36 

957 

c.  27,  s.  14 

1378 

ss.  31, 

33 

1404 

c.  38 

1466 

c.  76,  ss.  3,  4,  13 

851 

c.  39,  s.  1 

147 

c.  81,  ss.  2,  14,  Ir. 

1291 

c.  45 

849,  949 

s.  43 

1401 

s.  11 

1297,  1359,  1372, 

ss.  48, 

78,  Ir. 

100 

1513 

ss.  52, 

71,  Ir 

1357, 

c.  51,  s.  1 

744,  82.3,  1151, 

1370 

1168,  1273 

ss.  68, 

70,  Ir 

1290 

s.  2 

823 

c.  85,  s.  12 

10G7,  1069 

c.  57,  s.  18 

1120 

s:  23 

1361 

c.  69 

489 

c.  87,  s.  9 

1050 

c.  89,  Ir. 

1420 

c.  89 

1270,  1366 

c.  97,  s.  3 

301 

c.  91,  s.  71 

1301 

s.  5 

93 

c.  92,  s.  17 

1102 

c.  100,s.  16 

12 

c.  101, s.  33 

1301 

c.  108,s.  29 

1378 

s.  69 

1375,  1383 

6&7V 

,c.  18,  ss.  5, 

8.  13,  14.  16, 

ss.  70, 

74 

1119,  1120 

18,  20       1300 

s.  72 

199 

ss.  7, 

17      942,  946 

s.  73 

955 

ss.  35 

,  50,  51     1108 

c.  102 

694,  1243 

(2849) 


CXll 


TABLE  OF  STATUTES  CITED. 


1295, 


7&8V.,c.  105,  s.  73 

c.  lOG,  s.  40,  Ir.        lOGl 

ss.  41,42,  Ir 
c.  107,  s.  11,  Ir. 
c.  1)0,  ss.  7.  25 
8&9V.,c.  10,  s.    (i  818,  827 

c.  10,  s.  7 

s.   10 

ss.  11,  12 

s.  14 
•      s.  28 

s.  40 

ss.  45,  G3,  115— 
119 

s.  97 

s.  98 

ss.  124—127 

ss.  135,   136 

s.  161 
c.  17,  s.   105 
c.  18.  ss.  16,  17 
■  s.  50 

s.  68 

s.  79 

s.  134 

s.  150 
c.  19,  s.  142 
c.  20,  ss.  9,  162 

S.  10 

ss.  66,  67 

s.  107 
c.  20,  S.S.  108—111  1366, 

s.    138 
c.  33,  ss.  9,  153 
c.  37,  s.    10,  Ir 
c.  69,  Ir. 
c.  75,  ss.  1,  2 
c.  77,  s.   3 
c.  89,  s.  34 
c.  100  263,  1120, 

s.  7 

ss.  100,  101 
s.  108 
c.  101,  ss.  6,  7 
c.  106,  ss.  1,  2,  3 
c.  109,  s.  9 
c.  112,  .ss.  ],  2,  3 
c.  113  13 

s.  1     13,  19, 
1367, 
1388, 
1393, 
1411, 
S.  2     14,  19. 
s.  3  4,  5, 14,  25, 
1303, 
.  s.  4 
8.  5 


PAGE 
95 

1062 
1072 
1317 

386 
1494 

890 
1395 
1394 

845 
1515 
1378 

1295 

846 

1360 

1411 

199 

1299 

1299 

1395 

1324 

1429 

148 

199 

1299 

1299 

1299 

1377 

1398 

1412 

199 

1299 

1419 

1420 

716 

352 

850 

1376, 

1529 

1376 

1124 

199 

1413 

851 

1246 

158 

,  1304 

1343, 

1382 

1392, 

1403. 

1413 

1347 

1303, 

1335 

14 

15 


PAGE 

8&9  V.,c. 

118,  ss.  2,  146 
ss.  9,  39,  40, 

1377 

159,  164 

1123 

ss.  104,  105, 

157 

1345 

c. 

128,  s.  3 

352 

9&10V.,c. 

4,    Ir. 

li:20 

c. 

37,    ss.  22,  28,  32 

J 

35,  44,  Ii 

1103 

c. 

39,    s.  6 

1299 

c. 

59 

1243 

c. 

70 

1345 

c. 

74,    .s.  13 

1363 

s.  14 

1302 

c. 

87,    s.  5,  Ir. 

1302 

c. 

93 

1450 

s.  3 

93 

c. 

95,     ss.  3,  57 

11 

s.  63 

1455 

s.  83 

1113 

1147 

s.  86 

1106 

1196 

s.  Ill 

11, 

1323 

.s.  138 

303 

c. 

105,  s.  2 

1398, 

1412 

s.  4 

1360 

13!,8 

lO&llV,, 

c.  14,ss.  7,  8,  32 

1397 

ss.  42—49 

1415 

s.  50 

1296 

s.  58 

129 

c. 

15,    s.  38 

1296 

s.  45 

1299 

c. 

16,    .ss.  31,  55,  76 

, 

88—90 

1206 

c. 

16,  ss.  9f)— 98 

1415 

s.  110 

1299 

c. 

17.    ss.  7,  10 

1397 

ss.  21,  90 

1-J99 

c.  17,  s.  83 

1296 

c.  24,  s.  5 

13117 

c.  27,  ss.  7,  10,  26 

1397 

s.  50 

1296 

ss.  83—90 

1415 

s.  97 

1299 

c.  32,  s.  00. 

199 

c.  34,  s.  20 

1397 

ss.  200—207 

1415 

s.  214 

1299 

c.  42 

1379 

c.  65,  ss.  7,  8 

1397 

s.  CG 

1299 

c.  69,  s.  9 

1392 

c.  79,  s.  4,  Ir. 

1420 

c.  89,  s.   71 

1415 

s.  77 

1299 

c.  90,  s.  3,  Ir. 

11 

,  946 

ss.  12,  18, 

Ir. 

946 

s.  19,  2;), 

Ir. 

1123 

c.  109,  s.  5 

11 

ss.  10,  29 

1301 

ss.  11,  21, 

26 

1123 

(2850) 


TABLE  OF  STATUTES  CITED. 


CXlll 


PAGE 

PAGE 

10  &  11  V. 

C.  Ill 

1345 

12  &  13  V. 

c.  101,  ss.  14,  16     1269 

11  &  12  V. 

C.  12,  S.  10 

1061 

c.  106,  s.  117       1248 

c.  31,  ss.  2,  ! 

5 

943 

s.  118       1147 

c.  42 

372, 

763,  1047. 
1330 

s.  122       110() 
s.  260       124H 

s.  1 

1048 

c.  109,  s.  11     10,  1315 

ss.  11- 

-16 

1119, 
1330 

s.  12        1404 
s.  13        1315 

s.  16 

1048,  1074, 

s.  14        1316 

1116 

s.  17     10,  1406 

s.  17 

432 

,  433,  438, 

s.  18    1404,  1405 

442,  443,  765 

13  &  14  V. 

,  c.  7,  ss.  1,  2        1379 

s.  18 

764 

,  765,  766, 
767,  769 

c.  17,  s.  2          700 

s.  3          853 

C.  42,  s.  20 

438 

,  765,  766, 

c.  21,  ss.  4,  8         21 

1048,  1049, 

s.  7        4,  1303 

1074 

c.  28,  s.  3          949 

s.  21 

50 

c.  29,  ss.  6,  7       1410 

s.  27 

1274 

c. 

xxxiii.,  s.  18         1300 

s.  28 

764,  768 

c.  36,  s.  45         1593 

s.  34 

776 

ss.  46,  47,  48    30 

c.  43,  s.  3 

1119,  1330 

c.  43,  ss.  17,  18     1101 

s.  4 

286 

c.  60,  s.  44         1501 

s.  7 

1118,  1119 

c.  61,  s.  1         14.56 

s.  14 

1386 

c.  68              23 

s.  35 

1119 

c.  69,  Jr.          1300 

s.  36 

98 

ss.  26,  36,  75.  Ir. 

c.  44,  s.  8 

94 

943 

s.  9 

300,  302 

ss.  56,  57,  Ir.   1108 

s.  10 

302 

ss.  79,  81,  Ir.   1315 

s.  11 

302,  716,  717 

s.  113,  Ir.   199,  943 

c.  46,  s.  4 

256 

s.  114,  Ir.      199 

c.  63,  s.  35 

11 

c.  72,  s.  45,  Ir.        11 

c.  83,  s.  6 

957,  1407 

s.  47,  Ir.      1409 

s.  14 

957, 

1404,  1407 

s.  52,  Ir.      1297 

c.  99 

1345 

c.  74,  s.  10         1401 

c.  110,  s.  11 

1383 

14  &  15  V. 

,  c.  19,  s.  5          1460 

c.  118,  s.  3 

101 

s.  14         1063 

c.  121,  s.  18 

349 

c.  40,  s.  11          949 

c.  clxiii.  s.  258 

1121 

s.  21         1366 

12  &  13  V. 

,  c.  1,  s.  3 

1430 

s.  22"    1358,  136(i 

c.  1,  s.  5 

1375 

c.  42,  s.  6          957 

s.  6 

1359,  1365 

c.  49,  ss.  4,  5       1124 

s.  16 

1379 

c.  55,  s.  1          1062 

c.  16,  s.  8, 

[r. 

94 

s.  2      1063,  1073 

c.  45,  s.  1 

943,  947 

ss.  4,  5,  6      1065 

s.  2 

943 

c.  55.  s.  7          1069 

s.  10 

257 

c.  50,  s.  2          199 

c.  68 

1357 

c.  57,  ss.  10,  97,  110, 

s.  11 

949,  1370 

114,  Ir.    1323 

ss.  12 

18 

1370 

s.  19,  Ir.       615 

s.  17 

1389 

s.  36,  Ir.      1455 

s.  20 

1366 

s.  102,  Ir.     1143 

C.  77,  s.  2,  Ir. 

11 

s.  106,  Ir.      255 

ss.  43 

49, 

Ir.   1501 

s.  107,  Ir.      1317 

c.  78,  s.  9 

1392 

C.  57,  s.  108,  Ir.      1498 

c.  89 

20,  945 

c.  64,  s.  1      1360,  1412 

c.  92,  s.  17 

1121 

s.  3     1361,  1398 

c.  97,  s.  20 

1413 

c.  68,  s.  16,  17,  Ir.    1123 

H  LAW  OF  EVlI).— 

V.  I 

(2^ 

^51) 

CXIV 


TABLE  OF  STATUTES  CITED. 


14  &  15  v.,  c.  92,  s.  13, 

Ir. 

7 

15 

c.  93,  Ir. 

372 

s.  10, 

Ir. 

101 

ss.  13 

44, 

Ir.   1048 

s.  14, 

Ir. 

50,  763, 
1274 

c.  94 

504 

s.  18 

1147 

ss.  31 

40 

1101 

16 

s.  45 

1299 

c.  99 

1 

5,  465,  662, 
1144,  1154, 
1325,  1383 

s.  1 

1142,  1444 

ss.  2, 

3 

1145,  1151, 
1158 

s.  4 

1146 

s.  7 

15 

,  405,  1308, 
1325 

s.  9 

1325 

s.  10 

1326 

s.  11 

66,  1326 

s.  13 

1338 

s.  14 

392,  1341, 
1364,  1368 

s.  16 

1178 

s.  18 

1325 

s.  19 

66,  1325 

s.  20 

1144 

c.  100 

257,  267 

s.  1 

257,  276,  282, 

285 

ss.  2, 

3 

259 

s.  9 

272,  1460 

s.  10 

272 

s.  12 

1457,  1459 

s.  18 

281 

s.  22 

1338,  1385 

s.  23 

275 

s.  24 

269.  278 

c.  105,  s.  10 

944 

s.  12 

1500 

c.  106 

1246 

15«&16V.,c.  24,  s.  1 

907 

s.  2 

908 

c.  27,  s.  1 

1140 

s.  2 

1141 

s.  3 

1218 

s.  4 

1262 

c.  28,  s.  1 

12 

c.  54,  s.  6 

303 

c.  56,  s.  7 

1398 

c.  57,  s.  8 

1124,  1240 

17 

s.  12 

1125 

c.  63,  Ir. 

1358 

c.  76 

235 

s.  23 

1332 

ss.  34 

35, 

37    235 

ss.  80 

81 

1493 

(28 

52) 

P  A,GE 

>  &  16  v.,  c.  76,  ss.  106—108    1300 

s.  114     501,  505 

ss.  117,  118     635 

s.  222      235,  252 

c.  77,  s.  1  1354 

c.  85  1291 

c.  86,  s.  22      18,  1333 

ss.  49,  53       235 

;&17V.,c.  20,  ss.  3,  4,  5      1141 

c.  20,  s.  6  1142 

c.  30,  s.  9  1088 

c.  33  1379 

c.  56,  s.  6  1405 

c.  59,  s.  19  92 

c.  70,  s.  38         1429 

s.  57  18 

s.  60         1125 

s.  100        1376 

c.  78,  s.  6         17,  18 

s.  7  18 

c.  83       516,  662,  672, 

1147,  1154,  1163 

s.  1  1147 

s.  2      1148,  1158 

s.  3      781,  1148 

s.  4  1143,  1145,  1148 

c.  96   268,  941,  1120,  1376 

c.  97  941,  1120 

s.  128        1050 

c,  112,  s.  12,  Ir.  1379,1513 

s.  36,  Ir.    941,  946 

s.  66,  Ir.      1121 

c.  113,  s.  3,  Ir.       1139 

s.  20,  Ir.  92,  98,  606, 

607,  658,  937 

s.  23,  Ir.    98,  937 

s.  24  Ir.  98,  606,  607, 

656,  657,  921, 

947 

s.  30,  Ir.      1347 

s.  47,  Ir.       503 

s.  69,  Ir.       302 

s.  85,  91,  231,  Ir.  235 

s.  118,  Ir.      635 

s.  120,  Ir.      413 

s.  142,  Jr.     1347 

c.  128,s.l  1451 

c.  134,  s.  8  1291 

c.  137,  s.  6  12 

s.  8  1378 

ss.  10—14     1123 

s.  61         1302 

&18  v.,  C.26,  Ir.      1167,  1273 

c.  31,  s.  7   938,  947,  1422 

c.  34  1076 

c.  38,  ss.  5,  6        1246 

c.  38,  s.  10         1050 

c.  78,  s.  8  18 

c.  47  1192 


TABLE  OF  STATUTES  CITED. 


CXV 


PAGE 

PAGE 

17&18V.,c.  80,  s.  58 

1370 

18  &  19  V. 

,  c.  15,  ss.  2,  3 

1280 

c.  81,  s.  45 

27 

ss.  12,  14 

958 

c.  90,      724 

1227,  1463 

c.  39,  s.  10 

950,  1565 

c.  102,  s.  10 

1063.  1466 

c.  41 

829 

s.  12 

1075 

c.  42 

16,  1178 

s.  13 

1063 

s.  1 

1333 

s.  35 

1246 

s.  2 

1334 

c.  104 

946 

ss.  3,  4,  5 

17 

s.  2 

850 

c.  43 

128 

s.  7 

1362,  1390 

c.  63,  s.  30 

1375 

ss.  15, 

432 

1124 

c.  81,  s.  11 

1.389 

s.  19 

850 

c.  91,  s.  15 

1373,  1512 

s.  55 

849,  850 

c.  96,  s.  36 

1154 

s.  76 

850 

c.  105,  s.  15 

941 

s.  92 

1302 

c.  Ill,  s.  3 

110 

s.  107 

1373,  1390, 

c.  119,  s.  82 

1415 

1512 

s.  89 

351 

s.  138 

1390 

s.  97 

16 

ss.  142 

,  149, 150, 

c.  120,  s.  60 

1363 

155 

159,  160, 

ss.  61,  198,  199 

175 

940 

1286,  1302 

s.  163 

940,  1547 

s.  149 

838 

s.  165 

417 

s.  203 

1413 

s.  173 

1345 

s.  221 

199 

s.  249 

1390 

s.  222 

945 

s.  270 

1330 

c.  124,  ss.  4,  5 

12,  1378 

s.  271 

1359 

ss.  6—9 

1123 

s.  277 

1302,  1359, 

s.  42 

959,  1406 

. 

1373 

s.  44 

1302 

ss.  280—287   1358, 

19  &  20  V. 

,  c.  14,  Ir. 

946 

1366,  1512 

c.  36,  Ir. 

1419 

ss.  388 

503,  516  226 

c.  47,  s.  15 

890 

s.  518 

1063 

s.  20 

.  846 

s.  525 

101 

s.  41 

847 

s.  526 

1565 

c.  60,  s.  5,  Sc. 

1004 

c.  122,  s.  15 

1154 

s.  6,  Sc. 

880,  933 

c.  125,  s.  1 

30,  725 

s.  17,  Sc. 

205 

s.  3 

31, 725 

c.  64 

283 

s.  15 

725 

c.  79,  s.  4 

18 

ss.  20, 

21 

1182 

ss.  47,  73, 

77,  140, 

s.  22 

1218 

147 

1327 

s.  23 

1235 

s.  102 

1328 

s.  24 

1236 

s.  174 

18,  1327 

s.  25 

1229,  1384 

c.  94 

9 

s.  26 

366,  384, 

c.  96,  s.  2 

1370 

402,  1564 

c.  97 

657 

s.  27 

1584 

s.  3   871 

,  881,  1019 

ss.  51, 

55, 

56,57  471 

s.  9 

93 

s.  52 

471,  486 

•   s.  10 

97 

s.  53 

471,  488,  1125 

s.  13   93 

,  657,  676j 

s.  54 

1125 

921,  947 

s.  58 

502 

« 

s.  14 

532,  657 

s.  60 

1125 

C.  102,  s.  4,  Ir. 

30 

s.  65 

1445 

s.  21,  Ir. 

1224 

s.  87 

404 

s.  23,  Ir. 

1182 

s.  96 

235 

s.  25,  Ir. 

1219 

s.  103 

1182,  1219, 

s.  26,  Ir. 

1235 

1229,  12.36, 

s.  27,  Ir. 

1236 

1238, 

1564,  1584 

s.  28,  Ir. 

1229,  1384 

(28 

53) 

ex  VI 


TABLE  OF  STATUTES  CITED. 


19«S:20V.,c.l02 

,  s.  29,  Ir. 

PAGE 

366,  384, 

402,  1229, 

1564 

20 

s.  30,  Ir. 

1584 

s.  37,  Ir. 

371 

ss.  51—59 

,  Ir.  1125 

ss.  56—62 

,  Ir.   471 

ss.  63,  69, 

Ir.   1445 

s.  90,  Ir. 

404 

s.  98,  Ir.  1182, 1219, 

1235,  1236, 

1564,  1584 

c.  108, 

s.  8 

1323 

s.  31 

1089 

s.  57 

255 

ss.  6S,  66 

1571 

c.  113 

1116 

ss.  1—5 

1113 

21 

s.  6 

1114 

c.  119, 

s.  24 

1389 

20&21  V.,c.  3 

1466 

s.  2 

15 

c.  60, 

s.  126,  Ir. 

1104 

ss.  267,  268,  Ir.  866 

ss.  271,  27 

2,  Ir.  865 

s.  306,  Ir. 

1182,1249 

s.  307,  Ir. 

1182 

s.  308,  Ir. 

1104 

ss.  334,  335,  Ir.  9.56 

s.  361,  Ir. 

1320 

s.  362,  Ir. 

11,  19 

s.  364,  Ir. 

1420 

s.  365,  Ir. 

447 

s.  369,  Ir. 

1192 

s.  385,  Ir. 

1249 

c.  62, 

s.  14 

1154 

c.  77 

393 

736,  1497 

s.  3 

829 

s.  22 

10 

s.  24 

1096 

s.  26 

1540 

s.  32 

496 

s.  33 

513,  829 

ss.  61 --65 

1497-1499 

22 

ss.  66,  67, 

68   1272 

s.  69 

1353 

s.  86 

1465 

s.  86 

1271 

23 

c.  79 

Ir. 

1497 

s.  5,  Ir. 

829 

s.  27,  Ir. 

10 

s.  29,  Ir. 

1096 

s.  31,  Ir. 

1540 

s.  37,  Ir. 

469 

s.  38,  Ir. 

513,  829 

ss.  65-69 

,  Ir.  1497, 
1498 

ss.  71,  72, 

73,  Ir. 

1272 

(25 

54) 

«&  21  v.,  c  79,  s.  74,  Ir.      1353 

s.  91,  Ir.      1465 

s.  96,  Ir.      1271 

c.  85  673 

s.  2  829 

s.  7         1430 

s.  13  10 

s.  16     816,  1430 

s.  27     816,  1430 

s.  31        1430 

s.  33  187,  191,  334, 

335,  518,  732, 

816,  1208 

ss.  41,  43,  46   1150 

s.  47         469 

s.  48     829,  11.50 

s.  49        1097 

&22V.,  c.  25  1291 

s.  3         1370 

c.  42,  Jr.        97,  938 

c.  56,  ss.  12,  13     13.52 

c.  72,  ss.  8,  23,  Ir.     11 

ss.  33,  35,  Ir.   1101 

ss.  51,  85,  Ir.   110 

c.  78,  s.  2         1093 

c.  90,  s.  27         1398 

s.  31         695 

s.  32      192,  298 

s.  34         298 

s.  37        1400 

s.  40         354 

c.  93  1430 

c.  94,  s.  20         199 

c.  95,  s.  23         1096 

s.  27         1271 

s.  31      17,  1334 

s.  32  18 

c.  98,  s.  4  11 

c.  108,  s.  20      17,  1334 

s.  21  18 

22  v.,  c.  20,  s.  1         1114 

ss.  2—6      1115 

c.  33,  s.  3         1274 

&23V.,  c.  17  1075 

c.  21,  s.  16         469 

c.  35,  s.  12         949 

c.  63  9 

&  24  v.,  c.  4,  s.  9,  Ir.  1358,  1371, 

1510 

c.  28  390 

c.  32,  Ir.  829 

c.  38,  s.  13         936 

c.  53  95 

c.  83,  Ir.  128 

c.  107,  s.  32,  Ir.       101 

c.  127,  ss.  18,  22     1399, 

1400 

c.  134,  s.  5  98 

c.  149,  s.  9         1268 


TABLE  OF  STATUTES  CITED. 


CXVll 


PAGE 

23  & 24  v.,  c.  154,  s.  4,  Ir.       855 

s.  6,  Ir.       701 

ss.  7,  9,  Ir.     857 

s.  23,  Ir.      393 

s.  24,  Ir.       148 

s.  41,  Ir.      1001 

s.  42,  Ir.      1002 

s.  43,  Ir.      699 

s.  47,  Ir.      196 

s.  49,  Ir.      177 

s.  104,  Ir.  852,  855, 

856 

s.  105,  Ir.  855,  856 

24  &  25  v.,  c.  5,  ss.  18,  19      349 

c. '  9  955 

c.  10        1098,  1318 

s.  14  10 

s.  17         471 

s.  18         504 

s.  21        109H 

c.  11  9 

c.  62  95 

C  66,  s.  1         1182 

c.  94,  s.  1         1459 

c.  95       105,  272,  694 

c.  96,  ss.  5,  6  317 

s.  10         283 

s.  13         348 

ss.  14,35,65,66  351 

ss.  24,  26      277 

s.  28        1245 

s.  29     288,  1245 

ss.  30,  31      288 

ss.  32,  74      279 

ss.  40,  43,  56,  61 

67  270 
s.  41  272,  1460 
ss.  44,  46  66 
s.  58  331,  349 
s.  60  270,  279 
s.  71  280,  316 
s.  72  1460 
ss.  75—86  1245 
s.  86  1445 
s.  87  1466 
s.  88  191,  287,  1457, 
1459 
s.  91  1458 
s.  92  317 
s.  94  269 
s.  109  1461 
s.  110  1050,  1324 
s.  112  1324,  Ermla 
s.  113  94,  302,  717 
s.  116  331,  1385 
s.  121  1064 
C.  97,  ss.  20,  21  279,  348 
s.  51  279 
s.  60         287 


24 


25 


PAGE 

&25  v.,  c.  97,  s.  67  1461 
s.  68  1050,  1324 
s.  70  1324,  Errata 
s.  71  94,  302,  717 
s.  77  1064 
c.  98,  ss.  9,  10,  11,  14, 

16,  17, 18, 19  349 
ss.  27,  28,  29  15 
s.  42  284 
s.  43  284 
s.  44  287 
a  54  1064 
c.  99,  ss.  6,  7,  8  349 
s.  12  1457 
ss.  14,  19,  24, 

25    349,  1460 

s.  29         499 

s.  33   94,  302,  717 

s.  37     331,  1385 

s.  42    1061,  1064 

c.  100  105 

s.  6  281 

s.  25         272 

ss.  42,  43     1386 

c.  100,  ss.  44,  45  1387,  1461 

s.  52     127,  271 

ss.  53,  54     1165 

s.  57     190,  219 

s.  60     137,  272 

s.  77        1004 

c.  101         272,  349 

c.  104,  ss.  10,  11     448 

c.  114,  s.  1         912 

s.  3         913 

c.  134,  ss.  102,  189   1249 

s.  203       1320 

s.  204      10,  19 

s.  211       1182 

&  26  v.,  c.  17  955 

c.  53,  ss.  2,  68,  70,  71  1401 

s.  9  150 

s.  123         11 

c.  59,  s.  1,  Ir.       690 

s.  2,  Ir.       147 

c.  63,  ss.  5—12      1390 

ss.  25,  28        7 

s.  26   7,  1362,  1373 

s.  54      224,  226 

c.  67,  s.  22         1402 

c.  68,  s.  3  947 

ss.  4,  5  1297,  1372, 

1513 

c.  86,  s.  18         1125 

c.  88,  s.  11         1245 

s.  18         101 

ss.  19,  20     1006 

c.  89  846,  847 

ss.  11,  16      848 

s.  18     386,  1393 


(2855) 


CXVIU 


TABLE  OF  STATUTES  CITED. 


PAGE 

25  &  26  V. 

c.  89,  s.  22 

890 

ss.  25,  29 

1513 

s.  31 

1394 

s.  32 

1294 

s.  37 

1512 

ss.  47,  55 

848 

s.  61 

1372 

ss.  62,  63 

199 

s.  64 

945 

s.  67 

1360 

1514 

ss.  115,126,138  1091 

s.  125       13,  19 

s.  154        1514 

s.  174   1294,  1359, 

1371,  1393,  1394 

192        1393 

205         846 

20 

1120 

1124 

12,  1357, 

1370 

s.  50—52,  Ir.   1290 

c.  27,  ss.  2,  3,  Ir.    1291 

s.  16,  Ir.   100,  1357 

c.  41,  ss.  1,  2,  3,  4    206 

c.  49,  s.  2  10 

ss.  30—33  957,  1404 


s. 

s. 
c.  104 
c.  Ill 

s.  46 
26  &  27  v.,  c.  11,  s.  5,  Ir 


27  &  28  V. 


c.  56 

c.  65,  s.  24 
s.  29 

87,  s.  4 

88,  ss.  3,  5,  Ir. 
90,  Ir. 
100,  s.  1,  Sc. 

s.  2,  Sc. 

113,  s.  5 

114,  s.  33,  Ir. 
s.  38,  Ir. 

c.  118,  s.  22 
c.  119,  s.  5 
125 
13 
19 

51 
10 
2 
5 
5 
ss.  6,  8,  10 
s.  24 
s.  35 
54,  ss.  9,  50,  Ir. 
77,  s.  7 


c. 
c. 
c. 

c.  25,  s 
c.  37,  s 
c.  47,  s, 
c.  48,  s, 
c.  53,  s 


1375 
1374 
1386 
1367 
12 
1371 
690 
147 
1245 
12 
1123 
891 
1245 
170,  620,  621, 1055 
955 
848 
94 
352 
15,  1307 
1414 
257 
1116 
101 
94 
11 
1356 
ss.  8,  10  1357,  1366 


s. 
95 
97,  s. 

s. 


1293,  1357 

93,  1450 

1368,  1509 

1291,  1368 

(•2>t56) 


28 


28 


29 


&  28  v.,  c.  99,  s.  43,  Ir.      1089 

s.  48,  Ir.       256 

s.  49,  Ir.       257 

s.  57,  Ir.  1323,  1336 

c.  101,  s.  12    1336,  1377 

c.  113,  s.  33        1414 

c.  120,  ss.  18,  30     1397 

c.  121,  ss.  20,  60     1397 

&  29  v.,  c.  9,  Sc.  1182 

c.  18,  s.  1  1219, 1235, 1236, 

1239,  1564,  1585 

s.  2         1224 

s.  3         1219 

s.  4         1235 

s.  5     1236,  1239 

s.  6  1203,  1229,  1384, 

1564 

s.  8         1584 

c.  27,  ss.  3,  5       1392 

c.  50,  Ir.  690 

s.  7,  It.       147 

c.  60  690 

s.  2  147 

c.  63,  s.  6  15 

0.  72  901 

c.  78         849,  1296 

c.  86  203 

c.  88,  ss.  9,  16,  18,  20, 

21,  32,  Ir.   1402 

s.  56,  Ir.       11 

s.  59,  Ir.      1246 

c.  104,  ss.  18,  43       18 

ss.  33,  34     1154 

c.  112,  s.  1  901 

&29  v.,  c.  118,s.  2,  Ir.      1419 

c.  126,  s.  50         94 

&  30  v.,  c.  44,  ss.  21,  23,  Ir.   1413 

c.  49,  s.  20,  Ir.      1376 

s.  21,  Ir.       12 

c.  52,  ss.  1,  2       1073 

c.  57  955 

c.  66,  s.  7         1123 

c.  84,  s.  12,  Ir.       958 

ss.  15,  26,  29,  Ir. 

1298 

ss.  28,  32,  Ir.   1399 

c.  97,  s.  7,  Ir.       1379 

s.  12,  Ir.      1513 

c.  108,  ss.  7,  8,  9,  12   1296 

c.  109  4,  1309 

s.  48         273 

s.  54         100 

s.  61         1099 

s.  66  1099,1100.  1134 

s.  92         11.55 

c.  112  4.52 

c.  117  s.  4  1388 

s.  33    1375,  1377, 

1388,  1419 


TABLE  OF  STATUTES  CITED. 


CXIX 


29  &  30  V. 

PAGE 

,  c.  118,  ss.  7,  9,  46    1388 

31  &  32  V 

,  c.  59,  s.  29,  Ir. 

PAGE 

1375,  1377, 

s.  24 

1377 

1388,  1415 

s.  29 

1375 

c.  86,  ss.  1,  2 

851 

s.  30 

1388 

c.  Ill 

12 

30  &  31  V 

.,  c.  35,  s.  2 

1075 

c.  118,  s.  8  . 

91 

s.  3  442, 

1049,  1074 

c.  119,  ss.  39,  47     1361 

s.  4  443, 

1049,  1074 

s.  126 

1528 

s.  5 

1074 

c.  121,  s.  13 

1398 

s.  6 

443 

c.  125,  ss.  2,  26 

489 

s.  7 

445 

s.  15 

1124 

C.  44,  Ir. 

1341 

s.  31 

1092 

s.  81,  Jr. 

18 

s.  32 

1093 

s.  99,  Ir. 

1341 

s.  33 

1388 

s.  100,  Ir. 

1089 

s.  34 

1056 

s.  101,  Ir. 

1260 

s.  56 

1124,  1246 

s.  102,  Ir 

1341 

32  &  33  V. 

,  c.  24 

1246 

ss.  138,  139,  Ir.  1090 

c.  41.  s.  18  165 

,  381,  1366 

ss.  154,  158,  Ir.  235 

c.  42,  s.  21,  Ir. 

11 

s.  159,  Ir. 

622,  704 

c.  56,  s.  47 

91 

c.  58,  s.  172 

101 

s.  49 

1123 

ss.  175,  179—181 

s.  57 

199 

1116 

c.  57,  ss.  4,  5 

350 

c.  59 

162,  348 

s.  6    94,  302,  717. 

c.  70,  ss.  3,  5,  Ir.    1270 

1050, 

1324,  1461 

ss.  17,  19, 

Ir.   1266 

c.  62,  s.  11   279,  352.  774 

s.  18,  Ir. 

12 

s.  12 

279,  352 

ss.  19,  20, 

Ir.  1266,. 

s.  17 

1064 

1310 

s.  18 

1075 

C.  101,  s.  61 

1379 

s.  19 

284 

c.  102,  s.  6 

1511 

s.  20 

1466 

c.  105,  s.  4 

1109 

ss.  24,  25 

950 

c.  114,  Ir. 

•  1318 

ss.  26,  27, 

28   956, 

s.  21,  Ir. 

10 

1280 

s.  41,  Ir. 

471,  1540 

c.  67,  s.  45 

92,  1510 

s.  50,  Ir. 

1192 

s.  64 

1371 

ss.  52,  69, 

Ir.   1098 

s.  65 

199 

s.  57,  Ir. 

18 

ss.  67—69 

1301 

s.  66,  Ir. 

504 

c.  68 

1147 

ss.  104,  105,  Ir.  1096 

s.  1  1146, 

1148,  1149 

c.  116,  s.  1 

1459 

s.  2 

828,  1149 

c.  131,  s.  37 

847 

s.  3 

817,  1150 

c.  134,  s.  17 

349 

s.  4 

1172,  1176 

c.  142,  s.  5 

55 

c.  70,  s.  33 

1400 

s.  6 

253 

s.  57 

1005 

31  v.,  c.  4,  s.  1 

174 

c.  71,  s.  15 

892 

31  &  32  V. 

,  c.  20,  Ir. 

490 

s.  97 

774 

c.  25,  ss.  6,  8,  36,  Ir.  1388  \ 

s.  105 

660 

s.  18,  Ir. 

1377 

c.  71,  s.  107 

1320 

s.  23,  Ir. 

1375 

s.  109 

]0 

s.  24,  Ir. 

1388 

s.  127 

91 

c.  37,  s.  2  5,  20, 

1305,  1418 

c.  81,  s.  5 

1386 

s.  3 

1306 

c.  92,  Ir. 

12.  1123 

s.  4 

14,  1306 

s.  14,  Ir. 

1513 

s.  5   20, 

1306,  1418 

c.  102,  s.  13 

1511 

s.  6 

1307 

c.  115,  ss.  6,8,11,  15  1379 

c.  44 

955 

c.  117,  s.  1 

1398 

c.  45,  s.  24 

1512 

33  &  34  v.. 

c.  14,  s.  12    ] 

1305,  1372. 

s.  61 

1330 

1391 

c.  59,  ss.  4,  5,  Ir 


1388; 
(2857) 


cxx 


TABLE  OF   STATUTES  CITED. 


PAGE 

PAGE 

33  &  34  v.,  c.  23,  ss.  1,  31 

820 

34  & 35  v., 

c.  112,  s.  18 

1384 

ss.  10,  18 

867 

s.  19 

326,  331 

c.  29,  ss.  4,  8,  9 

940 

c.  113  s.  23,  37 

1296 

c.  35 

981 

s.  25 

1414 

.  ss.  2,  5,  7 

177 

c.  116 

1272 

c.  46,  ss.  31,  41, 

Ir.    26 

35  &  36  V. 

c.  24,  ss.  1,  6 

1393 

s.  58,  Ir. 

168,  701, 

c.  33    1300,  1359,  1371, 

942 

1511 

c.  49,  s.  1 

1176 

c.  38,  s.  11    353,  Errata 

c.  52,  s.  5 

1420 

c.  46,  s.  1 

1109 

ss.  14,  15 

1328 

c.  48,  ss.  2,  4,  Ii 

.  141,  1506 

s.  24 

1116 

s.  3,  Ir. 

148,  1419, 

c.  60,  s.  2 

390,  723 

1506 

c.  75,  s.  30 

1514 

c.  57,  ss.  11, 12,  Ir.  279,  352 

s.  64 

1388 

s.  17,  Ir. 

1064 

s.  81 

199 

s.  18,  Ir. 

1075 

s.  83 

1308,  1388 

s.  19,  Ir. 

284 

s.  87 

1294 

ss.  23,  24, 

Ir.   950 

c.  79,  s.  21 

1308 

C.  58,  s.  6,  Ir. 

11,  19, 

c.  90,  s.  9 

350 

1104 

c.  91 

956 

ss.  52,  53, 

Ir.   107 

s.  7 

1410 

ss.  57,  58, 

116,  Ir. 

c.  93,  s.  12 

1442 

1492 

c.  97 

850,  1571 

ss.  73,  74, 

Ir.   1089 

ss.  2,  18, 

19   1500, 

ss.  91,  121 

,  Ir.   866 

1501 

s.  97,  98, 

Ir.    865 

s.  16 

370 

s.  124,  Ir. 

26 

s.  17 

370 

c.  65,  s.  4 

818,  827 

s.  52 

92,  294 

c.  69,  s.  2,  Ir. 

1413 

s.  93 

393,  640 

s.  4,  Ir. 

11,  946, 

c.  98,  ss.  18,  22 

349 

1414 

c.  110,s.  11,  Ir. 

10 

s.  5,  Ir. 

1122,  1413 

s.  24,  Ir. 

469 

c.  73,  s.  4 

1302 

34  &  35  v.,  c.  22,  s.  25,  Ir. 

18 

c.  76,  s.  59 

1414 

c.  25,  s.  5, 

1419 

s.  61 

1050 

c.  31,  s.  13 

1396 

s.  63  101 

353,  1155, 

c.  41,  s.  20 

203 

Errata 

s.  38 

353 

s.  70 

64 

c.  43,  ss.  27,  46, 

50   1396 

s.  71 

199 

s.  69 

199 

C.  77,  s.  30 

1414 

c  49,  s.  6,  Ir. 

1096 

s.  32 

1050 

s.  8,  Ir. 

829 

s.  34.  101 

I,  353,  1 155 

s.  16,  Ir. 

17,  1334 

Errata 

s.  17,  Ir. 

18 

s.  39 

64 

c.  65,  ss.  12,  18, 

Ir.   1300 

s.  40 

199 

s.  38,  Ir. 

501 

c.  93,  s.  8 

136 

c.  70 

1301 

s.  23 

352 

s.  2 

1122,  1500 

s.  24 

941,  946 

s.  5    1] 

, 946,  1308 

s.  25 

148 

c.  7S,  S.5.  4.  7,  11 

,  15  11  23 

s.  31 

352 

s.  17 

1412 

c.  94,  s.  51 

353,  1156. 

c.  83,  s.  1 

1095 

Errata 

c.  96,  s.  20 

353 

s.  58 

1372 

c.  97 

894 

s.  70 

199 

s.  1 

939 

36  v.,  c.  9 

s.  5 

818,  827 

c.  105,  s.  15   353,  Errata 

36  &  37  V. 

,  c.  33,  s.  3 

1516 

c.  112,  ss.  9,  20 

331,  1385 

c.  36,  s.  5 

1366 

s.  15 

1166 

s.  6 

1309 

s.  17 

353 

(2.« 

58) 

c.  48,  s.  4 

12 

TABLE  OF  STATUTES  CITED. 


CXXl 


36  &  37  v.,  c.  48,  ss.  21,  25 

PAGE 
1123 

38  &  39  v., 

PAGE 

c.  55  352,  1377,  1379, 1516 

s.  30 

1361 

s.  7          11 

s.  35 

199 

ss.  44,  80,  90,  113, 

c.  60,  s.  4 

1329 

141,  157,  164, 

s.  5 

1116 

167,  169,  172, 

c.  66 

14 

182—188,  314, 

s.  16 

513,  1078 

326       1415 

s.  24 

4,  7 

s.  59         203 

s.  25  4,  176,  194,  849,  | 

s.  60         353 

865,  1573 

s.  76         1379 

s.  34 

31 

ss.  130, 135,  297, 1308 

ss.  56,  57, 

1108, 1531 

s.  174         848 

s.  61 

10 

ss.  219,  237    1294 

s.  67 

55 

s.  223        1366 

s.  87 

2.5,  1400 

s.  252     101,  353, 

s.  91 

55 

Errata 

c.  71,  s.  45 

1414 

s.  264         04 

c.  77,  s.  22 

1374 

s.  267         199 

s.  36 

353,  Errata 

s.  280         11 

c.  85,  s.  7 

940 

c.  57,  s.  27,  Ir.      1398 

s.  16 

224 

c.  59,  Ir.          1270 

s.  17 

225,  1453 

ss.  9,  10,  Ir.   1310 

c.  86,  s.  24 

353 

c.  60,  s.  10         1375 

c.  89,  s.  14 

26 

s.  11         1395 

37  &  38  v.,  c.  35 

1139 

s.  13         1396 

c.  36        1466,  Errata 

s.  14         1297 

c.  42,  s.  20 

1375,  1396 

s.  15     128,  1382 

s.  42 

865 

s.  16      865,  867 

c.  50,  ss.  1,  2,  5 

715,  1442 

s.  22    1110,  1544 

57 

96,  658 

s.  33     199,  3.53, 

s.  7    659,  935,  946 

Errata 

ss.  8,  9 

935,  947 

s.  39    1375,  1382 

s.  12   96, 151,  658 

c.  63,  s.  21     1156,  1400 

c.  62 

128,  654 

c.  66         932,  1139 

s.  2 

932 

c.  70,  s.  14         1401 

c.  64,  ss.  1,  2 

1142 

c.77,lSched.,Ord.XXXI. 

c.  67,  s.  8 

1413 

471 

c.  69,  ss.  35,  36, 

Ir.   1372 

s.  14        1400 

c.  78,  s.  1 

97 

s.  18         513 

s.  2 

153 

s.  22      30,  1592 

C.81,  ss.  5,  10 

1316 

c.  83,  ss.  5,  6,  7,  22   849 

C.84,  s.  2 

12 

s.  23        1512 

C.85,  s.  9 

1098 

s.  24    1296,  1512 

C.87,  s.  1 

1123 

c.  86,  ss.  4,  5,  6,  11   11.56 

C.88,  s.  32 

1290,  1368 

c.  87,  .ss.  5,10,16,22,80,  1402 

s.  38  ■ 

1508 

s.  18         150 

s.  46' 

99 

s.  104        1297 

s.  54 

1290 

ss.  107,  120     11 

c.  94,  ss.  13,  34 

96 

ss.  109,  110    1110 

c.  96 

1145,  1280, 

s.  Ill         26 

1466 

c.  89,  s.  47         199 

38  &  39  v.,  c.  14,  Ir. 

1419 

c.  90,  s.  10         1007 

c.  17,  ss.  34,  38 

84   1414 

c.  94,  ss.  3.  4        127 

s.  60 

1377 

39  &  40  V. 

,  c.  36,  s.  10         945 

s.  85 

199 

ss.  36,  37     1122 

c.  22,  s.  8 

197 

.ss.  177,  180     137 

c.  25,  ss.  4,  7,  8 

9    350 

ss.  178, 191     350 

c.  50,  s.  2 

1106 

s.  227        1121 

s.  3 

1350 

s.  257         99 

(28 

59) 

cxxu 


TABLE  OF  STATUTES  CITED. 


PAGE 

PAGE 

39*S:40  V.,c.  36,  s.  259 

350,  1154 

41  V. 

c. 

16 

,  s.  91     101, 

353,  Errata 

s.  261 

188 

s.  92     352, 

1324,  1400 

s.  263 

1325 

41  &  42  v., 

c.  12,  s.  1 

351 

s.  272 

94 

c.  26,  s.  13 

1294,  1300 

c.  37,  Ir. 

Errata 

s.  36 

1108 

39  &  40  v.,  c.  45,  s.  7. 

1396 

c.  31,  ss.  4,  5 

956 

s.  12 

865 

s.  10 

950,  1406 

c.  48 

1380 

s.  11 

956 

c.  61,  s.  34 

828 

s.  12 

1280 

c.  63,  Ir. 

49 

s.  16 

1315 

c.  80,  s.  4 

351,  1155 

,41  &  42  v., 

c.  33,  s.  5 

192 

s.  5 

1007 

s.  29 

1398 

40  &  41  v.,  c.  7.  s.  13 

1134 

s.  39 

199 

c.  8,  s.  18 

1134 

c.  38 

1010 

c.  14,  s.  1 

1156 

c.  49 

164 

c.  18,  s.  48 

168 

ss.  37,  41 

1391 

c.  21,  s.  6 

12 

s.  56 

353.  Errata 

s.  31 

51,  1424 

c.  52,  s.  13,  Ir. 

11 

c.  25 

1298 

ss,  41, 54, 100, 103, 

s.  16 

1399 

105, 129,  Ir.  1416 

s.  19 

1362 

s.  69,  Ir. 

203 

s.  20 

1363 

s.  70,  Ir. 

353 

c.  26,  s.  6 

1371,  1394 

ss.  91,  IOC 

,Ir.  1413, 

c.  39 

147 

1416 

c.  41 

1304 

s.  201,  subs.  1, 

ss.  3,  5 

26,  1305 

Ir. 

848 

s.  4 

10 

s.  223,  Ir. 

1416 

c.  48,  ss.  4,  9 

12 

s.  250,  Ir. 

101,  353 

c.  49,  s.  4,  Ir. 

12 

s.  263,  Ir. 

94 

s.  11,  Ir. 

1123 

s.  265,  Ir. 

1308 

s.  43,  Ir. 

51,  1424 

s.  267.  Ir. 

199 

s.  57,  Ir. 

1419 

c.  67 

1113,  1114 

c.  56,  s.  3,  Ir. 

1089 

c.  74,  s.  28 

1513 

s.  31,  Ir. 

1511 

s.  44 

1377 

s.  32,  Ir. 

1371,1511 

s.  55 

94,  717 

c.  57,  s.  7,  Ir. 

1101 

s.  57 

199 

s.  21,  Ir. 

1078 

ss.  61,  62 

352,  1005 

s.  27,  subs.  4.  Ir.   4 

s.  66    353,  Errata 

subs.  6,  Ir.   4 

c.  76,  s.  12 

199,  945 

s.  28,  subs.3,4,5. 

42  V. 

c. 

8 

1358,  1370 

6, 

Ir.   176, 

c. 

9 

199 

194,  849, 

c. 

1] 

L,  ss.  2,  3,  4,  5,  6, 

8,9, 

865 

10 

1380 

subs.  11,  Ir.  4 

s.  7 

1302 

•  s.  34,  Ir. 

1096 

s.  11 

1381 

s.  38,  Ir. 

1101 

42  &  43  V. 

c.  34,  s.  4 

352 

s.  78,  Ir. 

1400 

c.  49,  ss.  10—14 

1386 

c.  59 

1393 

-s.  10,  subs.  5   127 

ss.  1,  18 

1287 

s.  24,  subs.  2    50 

ss.  4,  6 

1565 

s.  27,  subs.  4   1386 

s.  17 

1511 

s.  28 

1073 

s.  22 

890 

s.  29 

26 

c.  63,  s.  6 

1396 

ss.  36,  55 

1119 

c.  77,  Ir. 

471 

s.  39 

353,  Errata 

41  v.,  c.  8,  s.  20 

1416 

s.  41 

1350 

c.  12,  s.  3 

1155 

C.  50,  s.  4,  Ir. 

956 

c.  15,  s.  19 

352 

s.  8,  Ir. 

172,  956 

c.  16,  ss.  27—30 

1400 

s.  11,  Ir. 

956 

s.  79 

199 

60) 

s.  16,  Ir. 

1315 

TABLE  OF  STATUTES  CITED. 


CXXIU 


PAGE 

42  &  43  V. 

c.  59 

235,  716 

44 

s.  3 

1431 

c.  72, 

s.  2 

1213 

c.  78 

1268, 

s.  5   955,  956 

1079, 

ss.  5—8 

1404 
957, 
1081 
1280 

43  &  44  v., 

c.  9, 

5.1 

22 

c.  13, 

s.  36 

99 

c.  19 

1365 

c.  42, 

ss.  1,2,  3,  8,  9, 
10 

s.  4 

s.  7 

1007 

93 

199 

c.  45, 

s.  2 

127 

43  &  44  V. 

c.  47, 

ss.  1,  3 

1001 

44  v.,  c.  12,  ss,  38,  39        Errata 

s.  44 

,  subs.  1 

370 

ss.  26—43 

737 

44  &  45  V. 

c.  20, 

ss.  6,  7 

1308 

c.  24, 

s.  4,  subs.  1 
s.  4,  subs.  3 

1350 
1060 

c.  35, 

s.  5,  Ir. 
s.  9,  Ir. 

1103 
1274 

c.  37, 

s.  25 
s.  26 

137 
200 

c.  41, 

ss.  3,  7 
s.  30  * 
s.  67 

1000 
866 
199 

c.  44, 

s.  8 

939 

c.  47, 

s.  8,  Sc. 

218 

45 

c.  49, 

s.  42,  Ir. 

11 

s.  48,  subs.  2,  Ir  1102 

s.  50,  subs.  2,  Ir 

.   26 

45 

c.  58, 

ss.  28,  44 

s.  29 

s.  52,  subs.  3 

s.  52,  subs.  4 

s.  53,  subs.  7 

s.  56 

s.  60.  subs.  8 

s.  63,  subs.  7 

s.  69       5 

s.  70 

s.  70,  subs.  1,  ; 

s.  80 

s.  124 

s.  125 

s.  126,  subs.  1 

s.  126,  subs.  2 
s.  126,  subs.  3 
ss.  127,  128 
s.  142,  subs.  3 
s.  156,  subs.  1, 
s.  156,  subs.  3 
s.  157 
s.  161 

1099 

1172 

1172 

1176 

505 

273 

1089 

1089 

1309 

5 

i       5 

1374 

1276 

1098 

1060, 

1099 

1172 

1099 

69 

1466 

2  351 

1155 

1385 

100 

s.  162,  subs.  C> 

1385 

(28 

61) 

PAGE 

&  45  v.,  c.  58,  s.  163,  subs.  A.  1374 
s.  163,  subs.  B.  1362 
s.  163,  subs.  C.  1309 
s.  163,  subs.  D.  1399 
s.  163,  subs.  E.  1374 
s.  163,  subs.  F.  200 
s.  163,  subs.  G.  1374 
s.  163,  subs.  H.  1374 
s.  163,  subs.  I.  1362 
s.  164  1386 
s.  165  1324 
s.  170  94 
s.  170,  subs.  1  94 
s.  170,  subs.  2  717 
s.  172,  subs.  1  1361 
ss.  175, 176, 177, 

178  5 
s.  179,  subs.  6  5 
s.  179,  subs.  11  1309 
s.  190  5 

c.  59  235,  471, 

1523 

c.  60,  s.  6  1075 
s.  13  1302 
s.  15        1372 

c.  62,  s.  3,  subs.  2  1399 
s.  9         1399 

c.  69,  s.  15         1060 

s.  27         1060 

s.  29     433,  1330 

v.,  c.  9,  ss.  2,  4       1303,  JSOS, 

1306,  1307 

c.  10,  ss.  5,  10  1309 

&  46  v.,  c.  25,  ss.  16,  17,  Ir.   1122 

c.  38,  s.  48  12 

s.  65,  subs.  9    12 

c.  39,  s.  2  1314 
s.  7,  subs.  7,  8  1314 

c.  43,  s.  8  172,  956,  1280, 

1406 

s.  10         950 

s.  11         1280 

s.  16         1280 

c.  48,  s.  27    1374,  1386 

c.  49,  s.  44        1374, 

1386 

s.  46  94 

s.  46,  subs.  3   717 

c.  50,  s.  22,  subs.  5  ,  1516 
s.  24  1415. 
s.  78  101,  1075 
s.  84  1063 
s.  94,  subs.  1  1092 
s.  94,  subs.  2-4  1093 
s.  94,  subs.  5-8  1246 
s.  94,  subs  9  1056 
s.  219,  subs.  1  101 
s.  226  94,  303 
s.  233        1293 


CXXIV 


TABLE  OF  STATUTES  CITED. 


PAGE 

45  &  46  v.,  c.  57,  s.  4 

55 

c.  59,  s.  10 

10 

c.  61,  s.  4 

92 

s.  10 

993 

s.  13 

186,  187 

s.  14 

993 

s.  14,  subs.  4    21 

s.  17         939 

s.  19         1549 

s.  20        1561 

s.  30      168,  344 

s.  30,  subs.  2   346 

s.  45,  subs.  2    45 

s.  49,  subs.  12, 13  44 

s.  54         729 

s.  55         731 

s.  60  92 

s.  63,  subs.  3   1556 

ss.  69,  70      404 

s.  74,  subs.  2    45 

s.  76  46 

s.  86,  subs.  2    45 

s.  89  21 

c.  72,  s.  11  subs.  2   1381 

c.  75  866 

c.  75,  ss.  1,2  675,  721,  866 

ss.  12,  16,  25    210 

1166 

ss.  14,  15 

c.  77,  ss.  3,  4 


46  V:,  c.  7,  s.  6,  Ir. 

s.  8,  Jr. 

s.  10,  Ir. 

ss.  11,  16,  Ir. 
46  &  47  v.,  c.  22,s.  8 


s,  17 

s.  30 
36,  s.  2 

s.  36 

s.  43 
40 
41,  ss.  3—23 

s  22 


715,  1442 

198 

956 

956,  1280 

950 

1280 

1512 

1362 

1330 

1123 

1420 

199 

1073 

940 

1547 


c.  49 


18,  235,  469,  486, 
488,  489,  502,  1332 


c.  51, 


C.  52,  s.  4, 
s.  11 


469 

1445 

101 

1460 

1063 

11.55 

1386 

1246 

200 

1056,  1075, 

1092,  1124, 

1246 

subs.  1    701 

198 

(2862) 


5 

s.  7 

s.  51 

s.  52 

s.  53,  subs.  1 

s.  53,  subs.  2 

s.  .53,  subs.  3 

s.  .59 

s.  62 

s.  70 


46  «& 


PAGE 

47  V.,  c.  52,  s.  13  1321,1491 
s.  16,  subs.  4  1276 
s.  17,  subs.  8   1249, 

1277 

s.  18,  subs.  2    942 

s.  18,  subs.  9    91, 

1321,  1491 

s.  18,  subs.  12,  866, 

1321 
s.  18,  subs.  13  1321 
s.  20,  subs.  2   1321, 

1491 
s.  21,  subs.  4  1492 
s.  23  942 

s,  24  1249 
s.  27,  subs.  1-3  1104 
1182,  1249 
s.  27,  subs.  6  470 
s.  28,  subs.  2,  4  1321 
s.  30  1492 
s.  31  284 

s.  32,  subs.  2  1492 
s.  35,  subs.  3  1491 
s.  43  186 

s.  44,  subs.  3  892 
ss.  47,  48  107 
s.  54  866 

s.  55  864,  865 
s.  56  865 

s.  68,  subs.  2  1179 
s.  78,  subs.  4  1277 
ss.  79,  80  1277 
s.  82,  subs.  3  1492 
s.  92  26 

ss.  93,  100  254 
s.  105,  subs.  5   470, 

1192 
s.  113  660 
s.  127  26 

s.  132    1320,  1321, 

1491 
s.  133  1322 
s.  134  1320 
s.135  1322,  1333 
s.  136  447 
s.  137  10,  19 
s.  138  1321,  1492 
s.  140  1492 
s.  142  198 
s.  149,  subs.  2  284, 
1064,  1075 
s.  163  279,  284,  352 
ss.  164,  165,  166, 

167   284,  1064 
s.  168         866 
C  57,  ss.  23,  55,  76,  78, 

114       1509 
s.  29  303 

s.  30  503 


TABLE  OF  STATUTES  CITED. 


cxxv 


PAGE 

PAGE 

46&47  V.,c.  57,  ss.  31, 

96 

1392 

c.  43 

Errata 

s.  49 

1393 

c.  53, 

s.  2          1155, 

Errata 

s.  84 

12 

c.  54, 

ss.  7,  31,  32 

1402 

s.  87 

849 

.  ss.  20.  21 

1403 

s.  88 

1298 

ss.  22,  44,  45 

1407, 

ss.  89, 

100 

1371 

1408 

s.  97 

199 

s.  51 

Errata 

s.  113 

Errata 

c.  61, 

s.  16 

Errata 

c.  61,  s.  28 

199 

c.  70, 

s.  30       1155, 

Errata 

ss.  33, 

54 

49 

s.  38 

Errata 

47&48  v.,  c.  14,s.  1 

1166 

c.  76, 

s.  15 

1308 

c.  30,    s.  3 

1304 

(2863) 


RULES  AND  FORMS  OF  SUPREME  COURT, 
1883,  CITED. 


ORD. 

B. 

PAGE 

ORD. 

VIII. 

1,  2,  3 

.    .  1347 

XXXI. 

X. 

1 

.    .  1349 

XII. 

25  .    . 

26  .    . 

.    .    684 
.    .    684 

XVI. 

1  .    . 

2  .    . 
4      .    . 
9 

.    .    236 

.    .    236 

.    .    236 

422 

11      .    . 

.    .    236 

12      .    . 

236,  237 

XVIII. 

2 

123,  475 

XIX. 

2 

4      ".    *. 

6      .    . 

12      .    . 

290,  422 
290,  645 
.    .  1538 
.    .    299 

13      .    . 

291, 

297 

712,  715 

XXXII. 

14      .    . 

.    .    291 

15      .    . 

.    .    291 

16      .    . 

.    .    292 

17      .    . 

.    .    292 

18      .    . 

290, 

292,295,  346 

19      .    . 

.    .    295 

20      .    . 

.    .    297 

21      .    . 

.    .  1519 

XXXIII. 

25      .    . 

131,   344 

27      .    . 

.    .    237 

XXI. 

5      .    . 

19  .    . 

20  .    . 

.    .    297 
.    .    299 
.    .  1444 

XXXVI. 

21      .    . 

292, 

356,  361 

XXII. 

1 

716,  717 

2,  4,  5, 

6,  ' 

7  .    . 

.    .    716 

XXIII. 

6      .    . 

292,  361 

XXV. 

1,2  . 

114,  297 

2,  3,  4, 

5 

714,  715 

XXVI. 

1      . 

.    .  1470 

XXVII. 

2 

106,  358 

XXXVII 

13      .    . 

290 

292 

712,  715 

XXVIII. 

1—13. 

238- 

-240,  295 

XXXI. 

..    .  1288 

1 

472 

479,  485 

• 

2      . 

.    .    473 

3      . 

.    .    475 

4      . 

.    .    472 

5      . 

473, 15.36 

6      . 

476,  1247 

7      . 

.    .    476 

8,  9,  10.  11 

.    .    478 

(28 

64) 

R.  PAGE 

12    1531 

13  .  .  1520,  1532,  1534, 

1536 

14  .  .  1523,  1531,  1532 

15  ...  485,  1519,  1521 

17   1520,  1521 

18   1521,  1538 

19   1282 

20   1521,  1538 

21   1539 

22   1521,  1539 

23  ....  1521,  1.539 

24   648 

25   475,  1-532 

26   475,  1532 

1   635 

2   635,  641 

3   635 

4,  5 637 

6   639,  713 

7   639 

8   408,  413 

9   418 

2   622 

3 623,  704 

5   1195 

2—10 20—32 

11,  12  ....  .  30,  1470 
30   1347 

36   1224 

37   325,  338 

38   1227 

48   504 

49   1108 

50   1531 

57   .359,  1125 

1  1186, 1187,  1567,  1571 

2   1188 

4  .  .  .  5.53,  1238,  1313 

5  .461.467,1110,1341, 

1342,  1.567,  1571 

6  a Errata 

7,  8,  9 1110 

55—25  .  .  452—461,  467 

12,  16 490,  1341 

13,  19  .  .  1089,  1178,  1190 

17   1110 

18  ....  428,  431,  467 


TABLE  OF  RULES  AND  FORMS. 


CXXVll 


ORD.  R.  PAGE 

XXXVII.  20 Errata 

24 1191 

25 428 

26,  27 1051 

28 1090 

29,  30,  31,  34  .  .  .  1052 

32 1054 

33 1055 

35 489 

36.  37,  38 490 

39 461,  462 

40 461 

41,  42,  44.  46,  49  .  .   462 
45,  47  ....  462,  Errata 

XXXVIII.  1 1187 

3,  8,  11,  12  ...    .    1189 
6 17,  1190 

4,  5,   13 1190 

15,  16,  17    .    .    1191,  1313 

27 361 

28,  29   ...    .    1188,  1222 

6 ■  .    1593 

8 371 

1 1347 

6 1470 

20,  21,  24 1347 

2 1082.  1541 

7 1445 

3—6 502,  503 

7,  8 28 

16,  17  .   1090,  1178,  1190 

1 1592 

4 242 

7 1594 

3 1269,  1365 

1—6 10,  1314 

1  .  .  .10,  955,  956,  957, 
1081,  1269,  1277, 
1280,  1315,  1365, 
1404,  1405,   1410 

5 1178,  1190 

6 10 

7 10,1314 

9 1410 

17,  18,  23,  24  .   1278,  1279 

28 1310 

29 1056 

LXIV.  1 21 

11 411,  1348 

12 1348 

LXV.  1,  12 55 


XXXIX. 

XLI. 

XLII. 

XLIV. 

XLV. 

L. 

LI. 

LV. 

LVII. 

LIX. 

LX. 

LXI. 


ORD.  R.  PAGE 

LXV.  27,  par.  9 1057 

27,  par.  27  ...  .  1522 
27,  par.  20  ...  .  422 
27,  par.  25,  .  .  1090,  1178 
27,  par.  53—54   .    .    1313 

LXVI.  1 408 

LXVII.  1—9 1348 

3 198 

LXVIII 1288,  1523 

1 33,  236,  254 

2 236,  254 

LXXI.  1 55 


APPENDIX  B. 

FORMS. 

6 472 

7 478 

8 1532 

9 1520 

10 1.520 

11 636 

12 638 

13 638 

14 408 

APPENDIX  G. 

21 1051 


APPENDIX  J. 

1 1051 

2 1084 

3—7 1051 

13 455,  465,  467 

14 457,  469 


APPENDIX  K. 

35 4.52,  469 

36 453 

37 453,  468 


APPENDIX  L. 


1090 


RULES  OF  SUPREME  COURT,  OCT.,  1884, 
CITED. 


RE.  6,  7,  8 Errata 

R.  15, 1594 

(2865) 


TABLE  OF  COUNTY  COURT  RULES  AND 
FORMS  CITED. 


YEAR. 

18-; 


ORDERS. 
VIII. 


XL 
XIII. 


XIV. 


RULES. 

PAGE 

9 

1107 

26  .  . 

.  1107 

504,  Errata  \ 

1  .    . 

.  1541 

2  .  . 

.  1542 

3  .  . 

.  1,543 

4  .  . 

.  1.543 

5  .  . 

.  1544 

6  .  . 

.   486 

7  .  . 

.   487 

8  .  . 

.   488 

9  .  . 

.   643 

1  .  . 

.  1106 

2  .  . 

.  1106 

3  .  . 

.  1191 

4  .  . 

.  1107 

5  .  . 

.  1591 

6  .  . 

.  1191 

7  .  . 

471,  488 

8  .  . 

.   47] 

9  .  . 

.   471 

1875. 


1883 


1875 


1876 


ORDERS. 
XIV. 

XVI. 
XVII. 


10 
17 


10 
11 


20 

21 

54 

55 

56 

57 

285 

286 

287 

288 

289 


255, 


PAGE 

.  471 
.  14.55 
Errata 
.    1591 


1106 

1106 

1541 

1.542 

1542 

487 

487 

1.543 

1543 

643 

1106 


(2866) 


A 

PRACTICAL  TREATISE 


LAW  OF  EVIDENCE. 


PART  I. 

NATURE  AND  PRINCIPLES  OF  EVIDENCE. 


CHAPTER  I. 

PRELIMINARY    OBSERVATIONS. 

§  1.^  The  word  Evidence,  considered  in  relation  to  Law,  s  j 
includes  all  the  legal  means,  exclusive  of  mere  argument,  which 
tend  to  prove  or  disprove  any  matter  of  fact,  the  truth  of  which 
is  submitted  to  judicial  investigation.  This  term  and  the  word 
proof  are  often  used  as  synonyms  ;  but  the  latter  is  applied  by 
accurate  logicians,  rather  to  the  effect  of  evidence,  than  to  evidence 
itself.^  None  but  mathematical  truth  is  susceptible  of  that  high 
degree  of  evidence  called  demonstration,  which  excludes  all  pos- 
sibility of  error.  In  the  investigation  of  matters  of  fact  such 
evidence  cannot  be  obtained  ;  and  the  most  that  can  be  said  is, 
that  there  is  no  reasonable  doubt  concerning  them.^  The  true 
question,  therefore,  in  trials  of  fact  is  not,  whether  it  is  possible 

'  Gr.  Ev.  I  1 ,  in  great  part. 

2  See  Wills  Cir.  Ev.  2  ;  Whately's  Log.  B.  ii.  c.  iii.  §1  ;  N.  York  Civ.  Code, 
§  1660. 

^  See  Gamb.  Guide,  121.  Even  of  mathematical  truths  this  writer  justly 
remarks,  that,  though  capable  of  demonstration,  they  are  admitted  by  most 
men  solely  on  the  moral  evidence  of  general  notoriety.  Id.  196.  See  N.  York 
Civ.  Code,  I  1662. 

(2867) 


2  .       •  PRELIMINARY    OBSERVATIONS.  [pART  I. 

that  the  testimony  may  be  false,  but  whether  there  is  sufficient 
probability  of  its  truth  ;  that  is,  whether  the  facts  are  proved  by 
competent  and  satisfactory  evidence. 


§  2.'  By  competent  evidence  is  meant  that  which  the  law  §  2 
requires,  as  the  fit  and  appropriate  proof  in  the  particular  case, 
such  as  the  production  of  a  writing,  where  its  contents  are  the 
subject  of  inquiry.  By  satisfactory  evidence,  which  is  sometimes 
called  sufficient  evidence,  is  intended  that  amount  of  proof  which 
ordinarily  satisfies  an  unprejudiced  mind  beyond  reasonable  doubt. 
The  circumstances  which  will  amount  to  this  degree  of  proof  can 
never  be  previously  defined ;  the  only  legal  test  of  which  they  are 
susceptible  is  their  sufficiency  to  satisfy  the  mind  and  conscience 
of  an  ordinary  man ;  and  so  to  convince  him,  that  he  would  ven- 
ture to  act  upon  that  conviction  in  matters  of  important  personal 
interest.^  Questions  respecting  the  competency  or  admissibility 
of  evidence  are  entirely  distinct  from  those  which  respect  its  suffi- 
ciency or  efPect ;  the  former  being  exclusively  within  the  province 
of  the  court ;  the  latter  belonging  exclusively  to  the  jury.^ 

§  3.*  This  branch  of  the  law  may  be  considered  under  three  g  3 
general  heads,  namely,  First,  The  Nature  and  Principles  of 
Evidence  ; — Secondly,  The  Object  of  Evidence,  and  the  Rules 
which  govern  its  production  ; — And,  Thirdly,  The  Means  of  Proof, 
or  the  Instruments  by  which  facts  are  established.  This  Order 
will  be  followed  in  the  present  Treatise ;  but  before  proceeding 
further,  it  will  be  convenient,  first,  to  consider  what  matters  the 
courts  will  of  themselves  notice  without  proof,  and  next,  to  ofPer 
a  few  observations  respecting  the  functions  of  the  judge,  as 
distinguished  from  those  of  the  jury. 

1  Gr.  Ev.  §  2,  almost  verbatim.  ""  1  St.  Ev.  578. 

'  1  Ph.  Ev.  2 ;  Carpenters'  Co.  v.  Hayward,  1  Doug.  375,  per  Buller,  J. 
*  Gr.  Ev.  §  3,  in  great  part. 


(2868) 


CHAP  II.]  MATTERS  JUDICIALLY  NOTICED. 


CHAPTER  II. 

MATTERS  JUDICIALLY  NOTICED,  WITHOUT  PROOF. ^ 

§  4."  All  civilised  nations,  being  alike  members  of  the  great  g  4 
family  of  sovereignties,  may  well  be  supposed  to  recognise  each 
other's  existence,  and  general  public  and  external  relations.  Every 
sovereign  therefore  recognises,  and,  of  course,  the  public  tribunals 
and  functionaries  of  every  nation  notice,  the  existence  and  titles 
of  all  the  other  sovereign  pov^ers  in  the  civilised  world.*  If,  how- 
ever, upon  a  civil  war  in  any  country,  one  part  of  tbe  natioTi 
should  separate  from  the  other,  and  establish  for  itself  an  inde- 
pendent government,  the  newly-  formed  nation  cannot  be  recognised 
as  such  by  the  judicial  tribunals  of  other  nations,  until  it  has  been 
acknowledged  by  the  sovereign  power  under  which  those  tribunals 
are  constituted.*  Still  the  judges  are  bound,  ex  officio,  to  know 
whether  or  not  the  government  has  recognised  such  nation  as  an 
independent  state.  ^ 


1  See  N.  York  Civ.  Code,  U  1^05,  1T06. 

^  Gr.  Bv.  §  4,  in  great  part. 

^  United  States  of  America  v.  Wagner,  2  Tjaw  Rep.  Ch.  Ap.  585,  per  Ld. 
Chelmsford,  Ch.;  36  L.  J.,  Ch.  628,  S.  C.  From  Yrisarri  v.  Clement,  11 
Moore,  314,  315;  2  C.  &  P.  225,  S.  C,  it  seems  that  the  existence  of  States 
•unacknowledged  by  the  government  must  be  proved  by  evidence,  showing 
that  they  are  associations  formed  for  mutual  defence,  supporting  their  own 
independence,  making  laws,  and  having  courts  of  justice.  The  two  Reports 
somewhat  differ,  but  the  latter  lays  down  the  soundest  law.  This  case  is  also 
reported  in  3  Bing.  432. 

*  City  of  Berne  v.  Bk.  of  Eng.,  9  Ves.  347. 

^  Taylor  v.  Barclay,  2  Sim.  213.  In  that  case  it  was  falsely  alleged  in  the 
bill,  with  the  view  of  preventing  a  demurrer,  that  Guatemala,  a  revolted 
colony  of  Spain,  had  been  recognised  by  Great  Britain  as  an  independent 
state;  but  the  V.-Ch.  took  judicial  notice  that  the  allegation  was  false.  See> 
however,  Dolder  v.  Bk.  of  Eng.,  10  Ves.  354,  where  Ld.  Eldon  observed,  "I 
cannot  affect  to  be  ignorant  of  the  fact,  that  the  revolutions  in  Switzerland 
have  not  been  recognised  by  the  government  of  this  country;  but  as  a 
judge,  I  cannot  take  notice  of  that."  It  may  well  be  doubted  whether  this 
last  case  is  law. 

(2869) 


4  LAWS  JUDICIALLY  NOTICED.  [pART  I, 

§  5.  In  like  manBer  the  judges  will  recognise,  without  proof,  g  5 
the  common  ^  and  statute  law,"  and  all  legal  claims,  demands, 
estates,  titles,  rights,  duties,  obligations,  and  liabilities  existing  by 
the  common  law,  or  by  any  custom,  or  created  by  any  statute;' 
the  rules  of  equity,  and  all  equitable  estates,  titles,  rights,  duties, 
and  liabilities;  *  the  cardinal  doctrine  that,  whenever  the  rules  of 
equity  and  of  the  common  law  differ,  those  of  equity  must  prevail;^ 
the  law  of  nations;  the  law  and  custom  of  parliament,  and  the 
privileges  and  course  of  proceedings  of  each  branch  of  the  legisla- 
ture;® the  prerogatives  of  the  erown,^  and  the  privileges  of  the 
royal  palaces;'  the  maritime  law;'  the  ecclesiastical  law;'"  the 
articles    of  war,  whether  in    the  naval,"  the  marine,  or  the  land 


^  Hein.  ad  Pand.,  L.  xxii.  t.  iii.  §  119. 

,^  R.  V.  Sutton,  4  M.  &  S.  542;  13  &  14  V.,  c.  21,  §  7.     As  to  private  Acts 
of  Pari.,  see  8  &  9  V.,  c.  113,  |  3,  cited  post,  §  7. 

3  36  c&  37  v.,  c.  66,  g  24,  subs.  6;  40  &  41  V.,  c.  57,  ?  27,  subs.  G,  Ir. 

*  36  »&  37  v.,  c.  66,  §  24,  subs.  4,  enacts,  that  the  High  Court  of  Justice  and 
the  Court  of  Appeal  "respectively,  and  every  judge  thereof,  shall  recognise 
and  take  notice  of  all  equitable  estates,  titles,  and  rights,  and  all  equitable 
duties  and  liabilities  appearing  incidentally  in  the  course  of  any  cause  or 
matter,  in  the  same  manner  in  v^hich  the  Court  of  Chancery  would  have 
recognised  and  taken  notice  of  the  same  in  any  suit  or  proceeding  duly  in- 
stituted therein  before  the  passing  of  this  Act."  See,  also,  40  &  41  V.,  c  57, 
^  27,  subs.  4,  Ir. 

^  36  &  37  v.,  c.  66,  §  25,  subs.  11,  enacts,  that  generally  in  all  matters,  "in 
which  there  is  any  conflict  or  variance  between  the  Rules  of  Equity  and  the 
Rules  of  the  Common  Law  with  reference  to  the  same  matter,  the  Rules  of 
Equity  shall  prevail."  See  Bustros  v.  White,  45  L.  J.,  Q.  B.  642,  per  Ct.  of 
A.pp.;  L.  R.,  1  Q.  B.  D.  423;  S.  C.  See,  also,  40  &  41  V.,  c.  57,  ^  28,  subs. 
11,  Ir. 

«  Lake  v.  King,  1  Wms.  Saund.  131  a;   Stockdale  r.  Hansard,  7  C.  &  P.  731; 

9  A.  &  E.  1,  and  2  P.  &  D.  1,  S.  C;  Wason  v.  Walter,  8  B.  «fe  S.  671;  38  L.  J., 
Q.  B.  34;  4  Law  Rep.,  Q.  B.  73,  S.  C;  Cassidy  v.  Steuart,  2  M.  &  Gr.  437; 
Case  of  the  Sheff.  of  Middlx.,  11  A.  &  E.  273;  Sims  r.  Marryat,  17  Q.  B. 
292.     Bradlaugh  v.  Gosset,  53  L.  J.,  Q.  B.  209;  L.  R.  12;  Q.  B.  D.  271,  S.  C. 

^  R.  V.  EldertoD,  2  Ld.  Ray.  980. 

^  Id.  Reported,  also,  in  3  Salk.  91,  284;  6  Mod.  73;  and  Holt,  590; 
Winter  v.    MUes,  10  East,  578;  1  Camp.  475,  S.  C;  Att.-Gen.  v.  Donaldson, 

10  M.  &  W.  117.  Hampton  Court  has  ceased  to  have  privileges  as  a  royal 
palace,  Att.-Gen.  v.  Dakin,  36  L.  J.,  Ex.  167;  and  2  Law  Rep.,  Ex.  290; 
S.  C,  per  Ex.  Ch.,  3  Law  Rep.,  Ex.  288;  and  37  L.  J.,  Ex.  150;  S.  C.  in  Dom. 
Proc.  4  Law  Rep.,  H.  L.  338;  and  39  L.  J.,  Ex.  113;  R.  v.  Ponsonby,  3  Q.  B. 
14.  9  Chandler  v.  Grieves,  2  H.  Bl.  606  n. 

'«  1  Roll.  Abr.  526;  6  Vin.  Abr.  496;  Sims  v.  Marryat,  17  Q.  B.  292,  per 
Ld.  Campbell.  "  29  &  30  V.,  c.  109. 

(2870) 


CHAP.    II.]  ARTICLES  OF  WAR  JUDICIALLY  NOTICED.  5 

service,'  including  those  made  for  the  government  of  the  forces  in 
India,^  as  well  as  the  auxiliary  forces, — that  is,  the  militia,  the 
yeomanry,  and  the  volunteers,' — and  also  the  reserve  forces;*  the 
rules  of  procedure  made  in  pursuance  of  §  70  of  the  Army  Act, 
1881,  "  whether  signified  under  the  hand  of  a  secretary  of  state" 
in  relation  to  the  army,^  or  promulgated  by  the  admiralty  with 
respect  to  the  marines  f  royal  proclamations,  such  being  acts 
of  State;'  the  general  practice  of  conveyancers  f  the  custom  of 
merchants,^  at  least  where  such  custom  has  been  settled  by  judicial 
determinations,'" — such,  for  example,  as  the  lieu  which  a  vendor  has 

^  By  ^  69  of  the  Army  Act,  1881,  44  &  45  V.,  c.  58,  the  Queen  is  em- 
powered '  'to  make  articles  of  war  for  the  better  government  of  ofiScers  and 
soldiers,  and  such  articles  shall  be  judicially  taken  notice  of  by  all  judges, 
and  in  all  courts  whatsoever;"  and  by  §  179,  subs.  1,  and  20,  of  the  same  Act, 
power  is  reserved  to  the  Ld.  High  Admiral,  or  any  two  of  the  commissioners 
for  executing  his  office,  to  "make  articles  of  war  for  the  Eoyal  Marines;" 
and  such  articles  it  is  presumed — though  the  Act  is  silent  on  the  subject — 
must  also  be  judicially  noticed. 

2  Id.,  ?  180.  ^  Id.,  ^§  175— 178. 

*  Id.,  ^  190,  subs.  9.  ^  Id.,  i  70,  subs.  1  &  3. 

«  Id.,  I  179,  subs.  6. 

^  There  exists  some  doubt  upon  this  point.  In  Dupays  i\  Shepherd  12 
Mod.  216,  Ld.  Holt  held  that  a  proclamation  in  print  was  of  as  public  a 
nature  as  a  public  act  of  parliament;  but  in  Van  Omeron  v.  Dowick,  2  Camp. 
44,  Ld.  Ellenborough  refused  to  take  notice  of  a  proclamation,  on  the  ground 
that  the  Gazette  containing  it  was  not  produced.  The  marginal  note  to  this 
last  case  is  calculated  to  mislead,  as  it  asserts  broadly,  that  "a  judge  at  Nisi 
Prius  will  not  take  judicial  notice  of  the  king's  proclamations."  The  case 
does  not  go  this  length,  which  is  tantamount  to  saying  that  royal  proclama- 
tions must  be  laid  before  the  jury,  but  simply  decides  that,  when  a  judge's 
memory  is  at  fault,  some  document  must  be  at  hand  to  establish  the  fact  which 
he  is  called  upon  to  notice.  Copies  of  royal  proclamations,  if  piirporting  to 
be  printed  by  the  Queen's  printer,  are  rendered  admissible  by  8  &  9  V.,  c.  113, 
§  3;  see  post,  §  7.  They  may  be  proved  also  in  a  variety  of  other  ways.  See 
31  &  32  v.,  c.  37,  §  2,  cited  post,  ^  1527. 

8  Willoughby  v.  Willoughby,  1  T.  E.  772,  per  Ld.  Hardwicke:  Doe  v. 
Hilder,  2  B.  &  Al.  793;  Doe  v.  Plowman,  2  B.  &  Ad.  577;  Rowe  o.  Grenfel, 
Ry.  &  M.  398,  per  Ld.  Tenterden.  Ld.  St.  Leonards  observes,  in  3  V.  &  P. 
28,  "It  matters  very  little  what  is  the  opinion  of  any  individual  convey- 
ancer; but  the  opinion  of  the  conveyancers,  as  a  class,  is  of  the  deepest 
importance  to  every  individual  of  property  in  the  state.  Their  setiled  rule  of 
practice  has,  accordingly,  in  several  instances  been  adopted  as  the  law  of  the 
land,  not  out  of  respect  for  them,  but  out  of  tenderness  to  the  numerous  pur- 
chasers who  have  bought  estates  under  their  advice."  See  also  Howard  v. 
Ducane,  1  Turn.  &  R.  86,  per  Ld..  Eldon.  In  Re  Rosher  53  L.  J.,  Ch.  722,  731, 
per  Pearson,  J. 

^  Eriskine  v.  Murray,  2  Ld.   Ray.  1542;  Soper  v.  Dibble,  1  Ld.  Ray.   175; 
Carter  v.  Downish,  Carth.  83;  Williaois  v.  Williams,  id.  269. 
^°  Barnett  v.  Braudao,  6  M.  &  Gr.  630.     lu  that  case,  where  judicial  notice 

(2871) 


6  CUSTOMS  JUDICIALLY  NOTICED.  [PAKT  I. 

on  goods  remaining  in  his  possession  for  unpaid  purchase-money,' 
or  the  general  lien  of  an  innkeeper  on  all  the  property  belonging  to 
his  guest  for  the  entire  amount  of  his  bill,"  or  the  general  lien  of 
bankers  and  factors  on  the  secui-ities  of  their  customers  in  their 
custody,^  or  the  practice  of  drawing  bills  of  lading  in  sets,  and  of 
dealing  with  one  of  a  set  as  representing  the  cargo  independently 
of  the  rest,*  or  the  usage  among  money  dealers  of  treating  scrip 

■was  taken  by  the  Ct.  of  Ex.  Ch.  of  the  general  lien  of  bankers  on  the  securities 
of  their  customers  in  their  custody,  Ltl.  Denman,  in  pronouncing  the  judg- 
ment of  the  court,  said,  "The  law-merchant  forms  a  branch  of  the  law  of 
England;  and  those  customs,  which  have  been  universally  and  notoriously 
prevalent  amongst  merchants,  and  have  been  found  by  experience  to  be  of 
public  use,  have  been  adopted  as  a  part  of  it,  upon  a  principle  of  convenience, 
and  for  the  benefit  of  trade  and  commerce:  and  when  so  adopted,  it  is  un- 
necessary to  j;i'frtrf  and  prove  them.  They  are  binding  on  all  without  proof. 
Accordingly  we  find  that  usages  affecting  bills  of  exchange  and  bills  of 
lading,  are  taken  notice  of  judicially." — P.  665.  His  lordship  then  states, 
that,  "in  the  case  of  aC  factor,  the  right  to  a  general  lien"  is,  "in  modern 
practice,  treated  as  a  matter  of  settled  law,  and  no  proof  is  ever  required  that 
such  general  lien  exists,  as  a  matter  of  fact;"  and  he  adds,  that  "the  lien 
of  bankers,  who  are  a  species  of  factors  in  j)ecuniary  transactions,  stands  on 
the  same  footing, "  and,  consequently,  their  right  to  such  lien  "need  not  be 
pleaded,  but  the  courts  are  judicially  bound  to  take  notice  of  it." — P.  666. 
This  lien  extends  to  Exchequer  bills. — Id.  The  judgment  of  the  Ex.  Ch. 
in  the  above  case  was  afterwards  reversed  by  the  House  of  Lords,  but  that 
portion  of  it  which  relates  to  judicial  notice  of  the  general  lien  of  bankers, 
was  affirmed.  Brandiw  r.  Barnett,  12  CI.  &  Fin.  787;  3  Com.  B.  519,  S.  C. 
So,  in  Edie  v.  E.  India  Co.,  2  Burr.  1226,  which  turned  upon  the  question, 
whether  a  bill  payable  to  A.  or  order,  and  indorsed  personally  to  B.,  could 
be  afterwards  indorsed  by  B.  to  another,  Mr.  J.  Wilmot  observed,  "The 
cu.stom  of  merchants  is  part  of  the  law  of  England,  and  courts  of  law  must 
take  notice  of  it  as  such.  There  maj",  indeed,  be  some  questions  depending 
upon  customs  amongst  merchants,  where,  if  there  be  a  doubt  al)out  the 
custom,  it  maybe  fit  and  proper  to  take  the  opinion  of  merchants  thereupon; 
yet  that  is  only  where  the  law  remains  doubtful,  and  even  then  the  custom 
must  be  proved  by  facts,  not  by  opinion  only;  and  it  must  also  be  subject  to 
the  control  of  law." — P.  1228.  Ld.  Mansfield,  however,  with  Denison  and 
Foster,  JJ.'s.  rejected  the  testimony  of  witnesses  to  prove  the  usage,  solely 
on  the  ground  that  the  question  had  already  been  solemnly  settled  by  two 
adjudications  in  the  courts  of  law.  See  pp.  1224 — 1226.  See  also  Jones  v. 
Peppercorn,  28  L.  J.,  Ch.  158. 

1  Imperial  Bk.  v.  Lond.  &  St.  Katherine's  Dock  Co.,  46  L.  J.  Ch.  337,  per 
Jessel.  M.  R.  ;  L.  R.  5  Ch.  D.  195,  S.  C. 

2  :Mulliner  v.  Florence,  L.  R.  3  Q.  B.  D.  484,  per  Ct.  of  App. ;  47  L.  J.  Q.   B. 
700,  S.  C. 

^  See  cases  cited,  ante,  n^",  p.  5;  also  Lond.  Chart.  Bk.  of  Australia r.  White, 
L.  R.  4  App.  Cas.  413,  422. 

*  Sanders  v.  Maclean,  52  L.  J.  Q.  B.  481,  per  Ct.  of  App. ;  L.  R.  11  Q.  B.  D. 
327,  S.  C. 

(2872) 


CHAP.    II.]  CUSTOMS  JUDICIALLY  NOTICED.  7 

certificates  payable  to  bearer,  whether  of  a  foreign  Government  or 
of  a  company,  as  negotiable  instruments  transferable  on  delivery,* 
or  the  custom  of  hotel- keepers  holding  their  furniture  on  hire  ;  ^ 
the  customs  which  regulate  the  special  descent  of  gavelkind  and 
borough  English  lands,^  and  it  seems  any  other  custom  incident  to 
such  tenures  ;  *  the  custom  or  law  of  the  road,  viz.,  that  horses  and 
carriages  should  respectively  keep  on  the  near  or  left  side  ;  ^  and 
the  following  rules  with  respect  to  navigation, — first,  that  ships 
and  steamboats,  on  meeting  "  end  on  or  nearly  end  on,  in  such  a 
manner  as  to  involve  risk  of  collision,"  should  port  their  helms,  so 
as  to  pass  on  the  port,  or  left,  side  of  each  other  ;  next,  that  steam- 
boats should  keep  out  of  the  way  of  sailing  ships  ;  and  next,  that 
every  vessel  overtaking  another  should  keep  out  of  its  way."     So, 

^  Goodwin  v.  Robarts,  L.  R.  1  App.  Cas.  476  ;  10  Law  Rep.,  Ex.  76  and 
337,  S.  C.  ;  Rumball  v.  Metrop.  Bk.,  L.  R.,  2  Q.  B.  D.  194  ;  46  L.  J.,  Q.  B. 
346,  S.  C. 

2  Crawcour  v.  Salter,  L.  R.  18  Cli.  D.  30,  53,  54,  per  Ct.  of  App.  ;  51  L.  J. 
Ch.  495.  S.  C. 

3  1  Bl.  Com.  76  ;  Doe  v.  Seudamore,  2  Ld.  Ray.  1025  ;  Co.  Lit.  1756  ;  Crosby 
V.  Hetlierington,  4  M.  &  Gr.  946,  per  Tindal,  C.J. 

*  In  Rider  v.  Wood,  24  L.  J.  Ch.  737,  Wood,  V.-C,  acting  on  the  authority 
of  Payne  v.  Barker,  as  reported  in  Bridg.  18,  23,  26,  held  that  the  court  would 
judicially  notice  all  the  customs  incident  to  borough  English  tenures.  See  also 
36  &  37  v.,  c.  66,  §  24,  subs.  6. 

^  This  rule  has  been  embodied  by  Professor  Selwyn,  in  what  an  Etonian 
would  call  ' '  Longs  and  Shorts  : ' ' — 

"  Sed  precor  hoc  posthac  reminiscere,  carpe  sinistram : 
Dextram  occurrenti  linquere  norma  jubet." 
What  is  perhaps  more  to  the  lawyer's  purpose,  the  rule  has  also  been  re- 
peatedly recognised  by  the  judges  at  Nisi  Prius,  in  actions  for  negligent  driving 
and  riding.  See  Leame  v.  Bray,  3  Ea.st,  593,  as  to  carriages,  and  Turley  v. 
Thomas,  8  C.  &  P.  104,  per  Coleridge,  J.,  as  to  saddle  horses.  See  also  14  & 
15  V.,  c.  92,  §  13,  Ir.  In  France  the  law  of  the  road  is  different,  and  horses 
and  carriages  there  pass  on  the  off  side. 

^  The  regulations  for  preventing  collisions  at  sea,  which  contain  the  rules 
concerning  lights,  fog  sign.als,  steering  and  sailing,  are  now  embodied  in  a 
table  issued  by  virtue  of  the  Act  25  &  26  V.,  c.  63,  |  25,  "Ord.  of  11  Aug.  1884, 
as  to  British  ships  and  boats,  and  Ord.  of  14  Aug.  1879,  as  to  Foreign  ships."  See 
32  L.  J.,  Pr.  Mat.  &  Adm.  1;  1  Lush.  Adm.  R.,  App.  i. ;  and  3  Law.  Rep.  Adm. 
&  Ecc.  611,  612.  I  26  of  the  same  Act  enacts  how  these  regulations  are  to  be 
published  and  proved,  and  §  28  enacts,  that  in  case  any  damage  to  person  or  pro- 
perty arises  from  the  non-observance  by  any  ship  of  these  regulations,  such  dam- 
age shall  be  deemed  to  have  been  caused  by  the  wilful  default  of  the  person  in 
charge  of  the  deck  of  such  ship,  unless  it  be  proved  that  circumstances  made  a 

(2873) 


8  CUSTOMS  JUDICIALLY  NOTICED.  [pART    I. 

every  judge  will  notice  the  particular  customs  which  have  been 
tried,  determined,  and  recorded  in  his  own  court/  So,  also,  the 
customs  of  London,  which  have  been  certified  by  the  recorder,^ 
such,  for  example,  as  the  custom  of  foreign  attachment^ — the 
custom  that  every  shop  is  a  market  overt  for  goods  of  the  same 
kind  as  are  usually  sold  there* — the  custom  that  married  women 
may  be  sole  traders'' — and  the  custom  which  defines  the  nature  of 
a  liveryman's  office,'' — will  be  judicially  noticed  by  the  respective 

departure  from  the  regulations  necessary.  See  post,  ^  206 ;  Gen.  St.  Nav.  Co. 
V.  Hedlej^,  3  Law  Rep.  P.  C.  44  ;  Dryden  v.  Allix,  1  Moo.  P.  C.  N.  S.  528  ; 
The  Concordia,  1  Law  Rei^.,  Adm.  &  Ecc.  93  ;  The  Spring,  1  Law  Rep.,  Adm. 
&  Ecc.  99.  As  to  the  law  prior  to  these  regulations,  see  Chadwick  v.  City  of 
Dublin  St.  Packet  Co.,  6  E.  &  B.  771  ;  Smith  v.  Voss,  2  H.  «&  N.  97 ;  Zugasti 
V.  Lamer,  12  Moo.  P.  C.  R.  331  ;  Maddox  v.  Fisher,  14  Moo.  P.  C.  R.  103  ; 
Williams  v.  Gutch,  id.  202  ;  Tuft  v.  Warman,  2  Com.  B.,  N.  S.  740.  See 
Morrison  v.  Gen.  St.  Navig.  Co.,  8  Ex.  R.  733 ;  Gen.  St.  Navig.  Co.  v.  Morrison, 
13  Com.  B.  581  ;  Gen.  St.  Navig.  Co.  v.  Mann,  14  Com.  B,  127  ;  Lawson  v.  Carr, 
10  Moo.  P.  C.  R.  162  ;  Churchward  v.  Palmer,  10  Moo.  P.  C.  R.  472 ;  La  Plata, 
1  Swab.  Adm.  R.  298  ;  Morgan  v.  Sim,  11  Moo.  P.  C.  R.  307. 

'  Dr.  &  St.  34  ;  1  Bl.  Com.  76. 

2  Crosby  i'.  Hetherington,  4  M.  &  Gr.  933,  946 ;  Bruin  v.  Knott,  12  Sim. 
452 — 456  ;  Blacquiere  ?;.  Hawkins,  1  Doug.  380,  per  Ld.  Mansfield.  See  Blunt 
V.  Lack,  26  L.  J.  Ch.  148.  But  uncertified  customs  must  be  proved  in  West- 
minster Hall,  though  they  will  be  judicially  noticed  in  the  City  Cts.  ;  Stainton 
&  wife  V.  Jones,  1  Doug.  380,  n.  96,  per  Ld.  Mansfield.  So,  also,  the  Q.  B. 
Div.  in  Ireland  will  not  judicially  notice  a  custom  of  the  Ld,  May.  &  Sheft.'s 
Ct.  in  Dublin,  unless  certified  by  the  recorder  ;  Simmonds  v.  Andrews,  1  Jebb 
&  Sy.  531. 

'■'.  Certified  by  Starkey  in  22  Ed.  4.  See  1  Roll.  Abr.  554  K  5  ;  Bruce  v. 
Wait,  1 IVI.  &  Gr.  39  ;  Crosby  v.  Hetherington,  4  M.  &  Gr.  933  ;  Westoby  v. 
Day,  2  E.  &  B.  605, 

*  Certified  by  Sir  E.  Coke,  5  Rep.  83  6  ;  S.  C,  rather  more  at  length,  as 
L'Evesque  de  Worcester's  case,  M.  360;  S.  C,  Poph.  84.  See  Lyons  v.  De 
Pass,  11  A.  &  E.  326  ;  and  9  C.  &  P,  G8,  S.  C,  where  the  custom  was  held  to 
apply,  though  the  premises  w^ere  described  in  evidence  as  a  warehouse,  and 
were  not  sufficiently  open  to  the  street  for  a  person  on  the  outside  to  see 
what  passed  within.  See,  also,  Crane  v.  London  Dock  Co.,  33  L.  J.  Q.  B. 
224  ;  5  B.  &  S.  313,  S.  C. 

^  Lavie  v.  Phillips,  3  Burr.  1776.  Other  local  customs,  as  that  of  carting 
whores  in  London,  or  that  of  foreign  attachment  in  Bristol,  Liverpool,  and 
Chester,  are  noticed  in  the  respective  city  courts,  1  Doug.  380,  n.  96,  and 
therefore  need  not  be  set  out  on  the  record.  In  such  cases,  if  the  judgment 
of  the  court  below  is  brought  before  a  court  of  error,  such  court  will  also 
judicially  notice  the  existence  of  the  custom.  See  Bruce  v.  Wait,  1  M.  &  Gr. 
24,  41,  n.  a. 

*  King  V.  Clerk,  1  Stalk.  349  ;  cited  by  Parke,  B.,  in  Piper  v.  Chappell,  14 
M.  &  W.  649, 

(2874) 


CHAP.    II.]  LAWS  AND  CUSTOMS  OF  FOREIGN  STATES.  9 

courts  in  which  the  certificates  are  recorded;'  but  no  one  court  can 
take  notice  of  a  custom,  which  has  merely  been  certified  to  another.^ 
Neither  can  judicial  notice  be  taken  of  the  usages  prevalent  among 
mining  partnerships  conducted  on  the  cost- book  principle,  foi", 
without  evidence,  the  judges  cannot  determine  the  meaning  of  the 
term  "cost-book  principle."^  Moreover,  the  courts  will  not  take 
cognisance  of  the  laws,  usages,  or  customs  of  a  foreign  state;  and 
so  strictly  is  this  rule  enforced,  that  all  foreign  laws,  the  laws  of 
the  colonies,*  and  even  the  laws  of  Jersey,'^  Guernsey,  or  Scotland, 
must  be  proved  as  facts,"  unless  steps  have  been  taken,  either 
under  the '"British  Law  Ascertainment  Act,  1859,"^  or  under  the 
"  Foreign  Law  Ascertainment  Act,  1861,"^  to  obtain  a  legal 
opinion  on  the  subject  from  a  superior  court  of  the  country,  whose 
laws  are  under  dispute.^  As  the  laws  of  Ireland  are  substantially 
the  same  as  those  of  England,  except  so  far  as  they  are  varied  by 
statute,  it  is  apprehended  that  no  proof  respecting  them  would  be 
required;  and  in  accordance  with  this  view  a  very  able  judge  has 
suggested  that  the  courts  at  Westminster  would  judicially  recog- 
nise the  fact,  that  an  action  must  be  commenced  by  process  in 
Ireland. '« 

§  6.  The  courts  will  also  judicially  notice  the  following  seals  : —    ^  g 
the  Great  Seal  of  the  United  Kingdom,  and  the  Great  Seals  of 

^  The  custom,  which  formerly  regulated  the  distribution  of  the  personal 
estate  of  intestate  freemen  of  the  city  of  London,  and  other  similar  customs 
in  York  and  other  places,  are  now  abrogated  by  19  &  20  V.,  c.  94. 

2  Piper  V.  Chappell,  14  M.  &  W.  649,  650,  per  Parke,  B. 

3  In  re  Bodmin  United  Mines  Co.,  23  Beav.  370. 

*  Prowse  V.  The  European  &  Amcr.  St.  Shipping  Co.,  13  Moo.  P.  C.  R. 
484;  S.  C,  nom.,  The  Peerless,   1  Lush.  Adm.  E.  103. 

^  Brenan's  case,  10  Q.  B.  498,  per  Patteson,  J. 

^  Dalrymple  v.  Dalrymple,  2  Hagg.  Cons.  54 ;  Mostyn  v.  Fabrigas,  1  Cowp. 
174,  per  Ld.  Mansfield;  Sussex  Peer,  case,  11  CI.  &  Fin.  114— ]  17;  Male  v. 
Roberts,  3  Esp.  163,  per  Ld.  Eldon;  R.  v.  Povey,  22  L.  J.,  M.  C.  19;  Pearce 
&  D.  .32,  S.  C;  Woodham  v.  Edwards,  5  A.  &  E.  771;  1  N.  &  P.  207,  S.  C; 
Wey  V.  Yally,  6  Mod.  194;  Story,  Conii.  §  637,  and  cases  cited  in  n.  See  also 
post,  U  48,  1423—1425. 

^  22  &  23  v.,  c.  63.  '  24  &  25  V.,  c.  11. 

*  See  Lord  v.  Colvin,  1  Drew.  &  Sm.  24;  Login  v.  Princess  of  Coorg.  30 
Beav;  632. 

^^  Reynolds  v.  Fenton,  3  Com.  C.  194,  per  Maule,  J.,  explaining  Ferguson 
V.  Mahon,  11  A.  &  E.  179;  3  P.  &  D.  143,  S.  C. 

(2875) 


10  SEALS  JUDICIALLY  NOTICED.  [PART    I. 

England,  Ireland,  and  Scotland  respectively,  '  the  Queen's  Privy- 
Seal  and  Privy  Signet,  whether  in  England,  Ireland,  or  Scjtland;^ 
the  Wafer  Great  Seal,  and  the  Wafer  Privy  Seal,  framed  under  the 
Crown  Office  Act,  1877;^  the  seal,  and  the  privy  seal,  of  the  duchy 
of  Lancaster;  the  seal,  and  the  privy  seal,  of  the  duchy  of  Corn- 
wall;* the  seals  of  the  old  superior  courts  of  justice;  and  of  the 
Supreme  Court,  and  its  several  Divisions;  the  old  Chancery  Com- 
mon Law  seal,^  and  the  seal  of  the  old  Chancery  Enrolment 
office;*^  the  seals  of  the  old  High  Court  of  Admiralty,  whether  for 
England  or  Ireland;'  of  the  Prerogative  Court  of  Canterbury;* 
and  of  the  Court  of  the  Vice- Warden  of  the  Stannaries  ;'^  the  seals 
of  all  courts  constituted  by  Act  of  Parliament,  if  seals  are  given  to 
them  by  the  Act,^°  and,  therefore,  the  seals  of  the  Court  for  Divorce 
and  Matrimonial  causes  in  England;"  of  the  Court  for  Matrimonial 
causes  and  matters  in  Ireland;'"  of  the  Central  Office  of  the  Royal 
Courts  of  Justice,  and  of  its  several  Departments;'^  of  the  principal 
Registry,  and  of  the  several  district  Registries  of  the  Supreme 
Court  of  Judicature;'*  of  the  principal  Registry,  and  of  the  several 
district  Registries  of  the  old  Court  of  Probate  in  England'^  and  of 
the  present  Court  of  Probate  in  Ireland;"*  of  the  old  "  and  new 
Courts  of    Bankruptcy;'^  of    the  Insolvent  Debtors'  Court,'^  now 

1  Lord  Melville's  case,  29  How  St.  Tr.  7U7. 

^  Foggassa's  case,  24  Edw.  3,  23,  cited  in  Olive  v.  Guin,  2  Sid.  146;  Laue's 
case,  2  Rep.  17  b.  MO  &  41  V.,  c.  41,  §  4. 

*  26  &  27  v.,  c.  49,  §  2.  ^  ^2  &  13  V.,  c.  109,   §  11. 

«  12  &  13  v.,  c.  109,  g  17. 

■^  Green  v.  Waller,  2  Ld.  Ray.  893;  24  &  25  V.,  c.  10,  §  14,  now  repealed  by 
44  &45  V.,.c.  59;  30  &  31  V.,  c.  114,  ?  21,  Ir. 

®  Kempton  v.  Cross,  Rep.  Tern.  Hardw.  108. 

»  6  &  7  AV.  4,  c.  106,  I  19. 

'"  Doe  V.  Edwards,  1  P.  &  D.  408;  9  A.  &  E.  554,  S.  C. 

"  20  &  21  v.,  c.  85,  §  13.  12  33  &  34  V.,  c.  110,  |  11,  Ir. 

13  Rules  of  Sup.  Ct.  1883,  Ord.  LXI.,  rr.  1,  6,  7. 

"  36  &  37  v.,  c.  66,  ?  61.  "  20  &  21  V.,  c.  77,  §  22. 

18  20  &  21  v.,  c,  79,  §  27,  Ir. 

"  See  24  &  25  V.,  c.  134,  ?  204,  and  32  &  33  V.,  c.  71,  ?  109. 

1^  46  &  47  v.,  c.  52,  ^  137,  enacts,  that  every  court  having  jurisdiction  in 
bankruptcy,  shall  have  a  seal,  and  "  judicial  notice  shall  be  taken  of  the  seal, 
and  of  the  signature  of  the  judge  or  registrar  of  any  such  court,  in  all  legal 
proceedings."  The  Bankruptcy  Rules  of  1883  provide,  by  r.  12,  that  "  all 
summonses,  petitions,  notices,  orders,  warrants,  and  other  process  issued  by  the 
court,  shall  be  sealed."     See  also  r.  14,  as  to  sealing  of  "office  copies." 

i»  Doe  V.  Edwards,  1  P.  &  D.  408;  9  A.  &  E.  554,  S.  C. 

(2876) 


CHAP.  II.]  SEALS  JUDICIALLY  NOTICED.  11 

abolished;  of  the  Court  of  Bankruptcy  and  Insolvency  in  Ireland/ 
which,  since  the  6th  of  August,  1872,  has  been  called  "  The  Court 
of  Banki'uptcy  in  Ireland;"'  of  the  several  United  Diocesan  Courts 
and  Kegistries  in  Ireland;"^  of  the  Landed  Estates  Court,  Ireland;* 
of  the  Record  of  Title  Office  of  that  Court ;^  and  of  the  County 
Courts.®  They  will  also  judicially  notice  the  seal  of  the  corporation 
of  Loadon,'  and  perhaps  the  seal  of  a  notary -public,  he  being  an 
officer  recognized  by  the  whole  commercial  world.^  Several  other 
seals  are  rendered  admissible  in  evidence  without  proof  of  their 
genuineness,  by  the  express  language  of  particular  statutes;  and 
among  them  may  be  noticed  the  seal  of  the  Local  Government 
Board,  whether  for  England**  or  for  Ireland;'"  of  the  late  Poor-law 
Board"  of  the  late  Local  Boards  of  Health,'^  and  of  the  new  Urban 
Sanitary  Authorities,'^  and  Joint  Sanitary  Boards;"  of  the  now 
abolished  Commissioners  for  the  Sale  of  Incumbered  Estates  in 
Ireland;'^  of  the  Land  Registry  Office  in  England,'®  whether  estab- 
lished under  the  Act  of  1862  or  under  that  of  1875;  of  the  District 
Registry  Offices  created  under  the  Act  last  referred  to"  of  the 
Office  for  the  Registration  of  Assurances  of  Lands  in  Ireland;'^  of 
the  Irish  Land  Commission;"  of  the  General  Register  Office  in 

1  20  &  21  v.,  c.  60,  §  362  Ir.  '^  35  &  36  V.,  c.  58,  §  gTit. 

=*  27  &28  v.,  c.  54,  ^  9,  50,  Ir.,  now  repealed  by  32  &  33  V.,  c.  42,  ^  21, 
Ir.  *  21  &  22  v.,  c.  72,  §  8,  Jr. 

^  28  &  29  v.,  c.  88,  §  56  Ir.  «  9  &  10  V.,  c.  95,  U  3,   57,  111. 

^  Doe  V.  Mason,  1  Esp.  53,  per  Ld.  Kenyon. 

»  Anon.,  12  Mod.  345;  Bayl.  Bills,  490;  Hutcheon  v.  Mannington,  6  Ves. 
823;  Cole  v.  Sherard,  11  Ex.  R.  482,  and  Furnell  v.  Stackpoole  Milw.,  Ec. 
Ir.  R.  485,  486.  But  see  In  re  Earl's  Trusts,  4  Kay  &  J.  300,  where  it  was 
held  that  the  seal  of  a  notary  public  of  a  foreign  country  not  under  the 
Queen's  dominion  could  not  be  judicially  noticed.  See,  also,  In  re  Davis's 
Trusts,  8  Law  Rep.  Eq.  98;  Nye  v.  Macdonald,  39  L.  J.,  P.  C.  34;  3  Law 
Rep.,  P.  C.  331,  S.  C. ;  in  which  last  case  it  was  held  that  the  execution  of  a 
deed  in  a  colony  could  not  be  proved  by  a  notary's  certificate. 

"  34  &  35  v.,  c.  70,  ?  5.  i»  35  &  36  V.,  c.  69,  |  4,  Ir. 

"  10  &  11  v.,  c.  109,  I  5;  1  &  2  v.,  c.  56,  ^  121,  Ir.;  10  «&  11  V.,  c.  90, 
I  3,  Ir.  12  11  &  12  v.,  c.  63,  ?  35;  21  &  22  V.,  c.  98,  g  4. 

'3  38  &  39  v.,  c.  55,  |  7. 

"  38  &  39  v.,  c.  55,  §  280;  41  &  42  V.,  c.  52,  §  13,  Ir. 

'^  12  &  13  v.,  c.  77,  ?  2,  Ir.     See  21  &  22  V.,  c.  72,  §  23,  Ir. 

i«  25  &  26  v.,  c.  53,  ^  123,  enacts,  that  "a  seal  shall  be  prepared  for  the  land 
registry  office;  and  any  instrument  purporting  to  be  sealed  with  such  seal 
shall  be  admissible  in  evidence;"  38  &  39  V.,  c.  87,  §  107. 

''  38  &  39  v.,  c.  87,  §  120.  is  13  &  14  V.,  c.  72,  ?  45,  Ir. 

i''44&45  v.,  c.  49,  n2,  Ir. 

(2877) 


12  SEALS  JUDICIALLY  NOTICED.  [PART,  I. 

England/  or  Ireland;"  of  the  Charity  Commissioners  for  England 
and  Wales ;'^  of  the  Railway  Commissioners;*  of  the  Commissioners 
of  Her  Majesty's  Works  and  Public  Buildings;^  of  the  Land  Com- 
missioners for  England,  by  which  general  title  the  old  Inclosure 
Commissionei's,  Copyhold  Commissioners,  and  Tithe  Commissioners 
are  now  designated;®  of  the  respective  Commissioners  for  the  Uni- 
versities of  Oxford  and  Cambridge;^  of  the  Prison  Commissioners 
for  England,  and  of  the  General  Prisons  Board  for  Ireland;^  of  the 
special  Commissioners  for  Irish  Fisheries;''  of  the  Commissioners 
of  Public  "Works  in  Ireland,  at  least  for  the  purposes  of  the  Drainage 
Acts,'«  and  of  the  Settled  Land  Act,  1882;"  of  the  Patent  Office;'' 
of  the  Office  of  the  Registrar  of  Designs  for  articles  of-  manufac- 
ture;'^ and  of  the  Record  Office,  whether  in  England"  or  in  Ire- 
land.'* In  all  proceedings,  too,  under  the  winding-up  clauses  of 
the  Companies  Act,  1862,  the  seal  of  any  office  of  the  Court  of 
Chancery,  or  Bankruptcy,  in  England  or  in  Ireland,  of  the  Court 
of  Session  in  Scotland,  or  of  the  Court  of  the  Vice-Warden  of  the 
Stanneries,  when  appended  to  any  document  made,  issued,  or  signed 

1  6  &  7  W.  4,  c.  86,  I  38.     See  3  &  4  V.,  c.  92,  §  9. 

'^26&27  v.,  c.  11,  ?  5,  Ir. 

3  16  &  17  v.,  c.  137,  §  6.  18  &  19  V.,  c.  124,  ?  4,  enacts,  that  "every 
act  of  the  board  may  be  sufficiently  authenticated  by  the  seal  of  the  Com- 
missioners, and  the  signature  of  the  secretary,  or,  in  his  absence,  of  the 
chief  clerk."  §  5  enacts,  that  all  "orders,  certificates,  schemes,  and  other 
documents,  issued  under  the  seal  of  the  board  shall  be  deemed  and  taken  to  be 
the  originals,  and  copies  thereof  shall  be  entered  in  the  books  of  the  board, 
and  all  such  entries  may  be  sufficiently  certified  by  the  signature  of  the  secre- 
tary, or,  in  his  absence,  of  the  chief  clerk;  every  order,  certificate,  scheme, 
and  other  document,  purporting  to  be  sealed  with  the  seal  of  the  board,  shall 
be  received  In  evidence  without  further  proof;  and  any  writing  purporting  to 
be  a  copy  extracted  from  the  said  books,  and  to  be  certified  as  aforesaid,  shall 
be  received  in  evidence  in  like  manner."  *  36  &  37  V.,  c.  48,  ^  4. 

Mo  &  16  v.,  c.  28,  §  1;  37  &  38  V.,  c.  84,  §  2. 

«  45  &  46  v.,  c.  38,  ^  48. 

MO  &  41  v.,  c.  48,  U  4,  9. 

8  40  &  41  v.,  c.  21,  §  6,  and  c,  49,  ?  4,  Ir. 

9  26  &  27  V,  c.  114,  §  33,  Ir. ;  continued  by '31  &  32  V.,  c.  Ill;  and 
amended  by  32  &  33  V.,  c.  92,  Ir. 

1"  26  &  27  v.,  c.  88,  U  3,  5,  Ir. ;  29  &  30  V.,  c.  49  ?  21,  Ir. 
"  45  &  46  v.,  c.  38,  U  48,  65,  subs.  9. 

12  46  &  47  v.,  c.  57,  ?  84. 

13  5  &  6  v.,  c.  100,  §  16;  and  6  &  7  v.,  c.  65,  R6,^.  "Both  these  Acts  now 
repealed  by  46  &  47  V.,  c.  57,  §  113,  &Sch.  3." 

"  1  &  2  v.,  c.  94,  g  11. 

"  30  (i  31  v.,  c.  70,  ?  18,  Ir. 

(2878) 


CHAP.  II.]  DOCUMENTARY  EVIDENCE  ACT,  OF   1S45.  13 

under  those  clauses,  or  any  official  copy  thereof,  must  be  judicially 
noticed.^ 


§  7.  The  principle  of  admitting  in  evidence  official  documents  g  7 
without  formal  proof,  was  extended  to  a  numerous  class  of  cases 
by  the  Documentary  Evidence  Act,  of  1 845.^  That  statute,  after 
reciting  that  "it  is  provided  by  many  statutes  that  various  certifi- 
cates, official  and  public  documents,  documents  and  proceedings 
of  corporations  and  of  joint-stock  and  other  companies,  and  certi- 
fied copies  of  documents,  by-laws,  entries  in  registers  and  other 
books,  shall  be  receivable  in  evidence  of  certain  particulars  in 
courts  of  justice,  provided  they  be  respectively  authenticated  in 
the  manner  prescribed  by  such  statutes," — that  "the  beneficial 
effect  of  these  provisions  has  been  found  by  experience  to  be 
greatly  diminished  by  the  difficulty  of  proving  that  the  said 
documents  are  genuine," — and  that  "it  is  expedient  to  facilitate 
the  admission  in  evidence  of  such  and  the  like  documents  :" 
enacts,  that  "  whenever  by  any  Act  noiu  in  force  or  hereafter  to  be 
in  force,  any  certificate,  official  or  public  document,  or  document 
or  proceeding  of  any  corporation  or  joint-stock  or  other  company, 
or  any  certified  copy  of  any  document,  by-law,  entry  in  any 
register  or  other  book,  or  of  any  other  proceeding,  shall  be 
receivable  in  evidence  of  any  particular  in  any  court  of  justice, 
or  before  any  legal  tribunal,  or  either  House  of  Parliament,  or 
any  committee  of  either  House,  or  in  any  judicial  proceeding, 
the  same  shall  respectively  be  admitted  in  evidence,  'provided 
they  respectively  purport  to  be  sealed  or  impressed  with  a  stamp, 
or  sealed  and  signed  or  signed  alone,  as  required,  or  impressed 
with  a  stamp  and  signed,  as  directed  by  the  respective  Acts  made 
or  to  be  hereafter  made,  without  any  proof  of  the  seal  or  stamp, 
where  a  seal  or  stamp  is  necessary,  or  of  the  signature,  or  of  the 
official  character  of  the  person  appearing  to  have  signed  the  same, 


1  25  &  26  v.,  c.  89,  §  125. 

^8  &  9  v.,  c.  113.  The  author  of  the  present  work  naturally  feels  some 
satisfaction  in  referring  to  this  statute,  as  he  originally  suggested  to  the  Law 
Amend.  Soc.  the  alterations  embodied  therein,  and  afterwards  prepared  the 
bill,  which,  under  the  protection  of  Ld.  Brougham,  obtained  the  sanction  of 
the  legislature. 

(2879) 


14  DOCUMENTARY  EVIDENCE  ACT,  OF  1845.  [PART  I. 

and  withotiL  and  further  proof  thereof  in  every  case  in  which  the 
original  record  could  have  been  received  in  evidence."* 

Sect.  2  enacts,  that  "all  courts,  judges,  justices,  masters  in 
chancery,  masters  of  courts,  commissioners  judicially  acting,  and 
other  judicial  officers,  shall  henceforth  take  judicial  notice  of  the 
signature  of  any"  judge  of  the  Supreme  Court  of  Judicature,'' 
"provided  such  signature  be  attached  or  appended  to  any  decree, 
order,  certificate,  or  other  judicial  or  official  document." 

Sect.  3  enacts,  that  "  all  copies  of  private  and  local  and  personal 
Acts  of  Parliament  not  public  Acts,  if  purporting  to  be  printed  by 
the  Queen's  printers,  and  all  copies  of  the  journals  of  either  House 
of  Parliament,  and  of  royal  proclamations,  purporting  to  be  printed 
by  the  printers  to  the  Crown,  or  by  the  printers  to  either  House  of 
Parliament,  or  by  any  or  either  of  them,  shall  be  admitted  as  evi- 
dence thereof  by  all  courts,  judges,  justices,  and  others,  without 
any  proof  being  given  that  such  copies  were  so  printed."^ 

'  The  words  after  the  last  comma  were  introduced  into  the  Act  while  pass- 
ing through  the  House  of  Commons.  They  appear  to  have  been  copied  from 
the  Act  of  1  &  2  v.,  c.  94,  |  13  (cited  post,  §  1533,  n.)  by  some  Honourable 
Member,  who  did  not  know  distinctly  what  he  was  about. 

2  36  &  37  v.,  c.  66. 

^  ^  4  provides,  that  "if  any  person  shall  forge  the  seal,  stamp,  or  signature 
of  any  certificate,  official  or  public  document,  or  document  or  proceeding  of 
any  corporation  or  joint-stock  or  other  company,  or  of  any  certified  copy  of  any 
document,  by-law,  entiy  in  any  register  or  other  book,  or  other  proceeding  as 
aforesaid,  or  shall  tender  in  evidence  any  such  certificate,  official  or  public 
document,  or  document  or  proceeding  of  any  corporation  or  joint-stock  or  other 
company,  or  any  certified  copy  of  any  document,  by-law,  entry  in  any  register 
or  other  book,  or  of  any  other  proceeding,  with  a  false  or  counterfeit  seal, 
stamp,  or  signature  thereto,  knowing  the  same  to  be  false  or  counterfeit,  whether 
such  seal,  stamp,  or  signature  be  those  of  or  relating  to  any  corporation,  or 
company  already  established,  or  to  any  corporation  or  company  to  be  hereafter 
established, — or  if  any  person  shall  forge  the  signature  of  any  such  judge  as 
aforesaid  to  any  order,  decree,  certificate,  or  other  judicial  or  official  document, 
or  shall  tender  in  evidence,  any  order,  decree,  certificate,  or  other  judicial  or 
official  document  with  a  false  or  counterfeit  signature  of  any  such  judge  as 
aforesaid  thereto,  knowing  the  same  to  be  false  or  counterfeit, — or  if  any  person 
shall  print  any  copy  of  any  private  Act,  or  of  the  journals  of  either  House 
of  Parliament,*  which  copy  shall  falsely  purport  to  have  been  printed  by  the 


*  The  words  "or  of  any  royal  proclamation,"  were  introduced  into  the 
original  draft  of  the  bill,  and  would  seem  to  have  been  accidentally  omitted. 
The  omission,  however,  is  remedied  by  31  &  32  V.,  c.  37,  I  4,  cited,  post, 
I  1527,  in  n. 

(2880) 


CHAP.  II.J      COLONIAL  LAWS  AND  PROCLAMATIONS.  15 

§  9.  An  Act,  which  was  passed  in  the  year  1865  to  remove  ^  8a 
doubts  as  to  the  validity  of  colonial  Imvs,^  has  simplified  the  mode 
of  proving  such  laws,  by  enacting  iu  §  6,  that  "  the  certificate  of 
the  clerk  or  other  proper  officer  of  a  legislative  body  in  any  colony, 
to  the  effect  that  the  document  to  which  it  is  attached  is  a  true 
copy  of  any  colonial  law  assented  to  by  the  Governor  of  such 
colony,  or  of  any  bill  reserved  for  the  signification  of  Her  Majesty's 
pleasure  by  the  said  Governor,  shall  be  prima  facie  evidence  that 
the  document  so  certified  is  a  true  copy  of  such  law  or  bill,  and,  as 
the  case  may  be,  that  such  law  has  been  duly  and  properly  passed 
and  assented  to,  or  that  such  bill  has  been  duly  and  properly  passed 
and  presented  to  the  Governor;  and  any  proclamation  purporting 
to  be  published  by  authority  of  the  Governor  in  any  newspaper  in 
the  colony  to  which  such  law  or  bill  shall  relate,  and  signifying 
Her  Majesty's  disallowance  of  any  such  colonial  law,  or  Her 
Majesty's  assent  to  any  such  reserved  bill  as  aforesaid,  shall  be 
prima  facie  evidence  of  such  disallowance  or  assent." 

§  10.  Other  facilties  in  the  proof  of  foreign  and  colonial  docu-    g  9 
ments  had  already  been  aflPorded  in  1851  by  Lord  Brougham's  Act 
to    amend   the    Law   of    Evidence.^     The    seventh  section  of  this 
statute  enacts,  that  "  all  proclamations,  treaties,  and  other  acts  of 

printers  to  the  Crown,  or  by  the  printers  to  eitlier  House  of  Parliament,  or  by 
any  or  either  of  them, — or  if  any  person  shall  tender  in  evidence  any  such 
copy,  knowing  that  the  same  was  not  printed  by  the  person  or  persons  by 
whom  it  so  purports  to  have  been  printed, — every  such  person  shall  be  guilty 
of  felony,  and  shall  upon  conviction  be  liable  to  "  (penal  servitude  for  a  period 
not  exceeding  se  ven  years  or  less  than  five  years,  see  20  &  21  V.,  c.  3,  ^  2, 
as  amended  by  27  &  28  V.,  c.  47,  |  2),  "or  to  imprisonment  for  any  term  not 
more  than  three  nor  less  than  one  year,  with  hard  labour  :  Provided  also, 
that  whenever  any  such  document  as  before  mentioned  shall  have  been  re- 
ceived in  evidence  by  virtue  of  this  Act,  the  court,  judge,  commissioner,  or 
other  person  officiating  judicially  who  shall  have  admitted  the  same,  shall,  on 
the  request  of  any  party  against  whom  the  same  is  so  received,  be  authorised, 
at  its  or  at  his  own  discretion,  to  direct  that  the  same  shall  be  impounded, 
and  be  kept  in  the  custody  of  some  officer  of  the  court  or  other  proper  person, 
until  further  order  touching  the  same  shall  be  given,  either  by  such  court,  or 
the  coui't  to  which  such  master  or  other  officer  belonged,  or  by  the  persons 
or  person  who  constituted  such  court,  or  by  some  one  of  the  equity  or  common 
law  judges  of  the  superior  courts  at  Westminster,  on  application  being  made 
for  that  purpose."  §  5  enacts,  that  the  Act  shall  not  extend  to  Scotland. 
See  24  &  25  V.,  c.  98,  ^  27—29. 
1  28  &  29  v.,  0.  63.  *  14  &  15  V.,  c.  99. 

(2881) 


16  FOREIGN  AND  COLONIAL  DOCUMENTS.  [PABT    I. 

state  of  any  foreign  state,  or  of  any  British  colony,  and  all  judg- 
ments, decrees,  orders,  and  other  judicial  proceedings  of  any  court 
of  justice,  in  any  foreign  state  or  in  any  British  colony,  and  all 
affidavits,  pleadings,  and  other  legal  documents  filed  or  deposited 
in  any  such  court,  may  be  proved  in  any  court  of  justice,  or  before 
any  person  having  by  lavv^  or  by  consent  of  parties  authority  to  hear, 
receive,  and  examine  evidence,  either  by  examined  copies,  or  by 
copies  authenticated  as  hereinafter  mentioned  :  that  is  to  say,  if 
the  document  sought  to  be  proved  be  a  proclamation,^  treaty,  or 
other  act  of  state,  the  authenticated  copy,  to  be  admissible  in 
evidence,  must  purport  to  be  sealed  with  the  seal  of  the  foreign 
state  or  British  colony  to  which  the  original  document  belongs; 
and  if  the  document  sought  to  be  proved  be  a  judgment,  decree, 
order,  or  other  judicial  proceeding  of  any  foreign  or  colonial  court, 
or  any  affidavit,  pleading,  or  other  legal  document  filed  or  deposited 
in  any  such  court,  the  authenticated  copy,  to  be  admissible  in 
evidence,  must  purport  either  to  be  sealed  with  the  seal  of  the 
foreign  and  colonial  court  to  which  the  original  document  belongs, 
or  in  the  event  of  such  court  having  no  seal,  to  be  signed  by  the 
judge,  or  if  there  be  more  than  one  judge,  by  any  one  of  the  judges 
of  the  said  court,  and  such  judge  shall  attach  to  his  signature  a 
statement  in  wrriting  on  the  said  copy  that  the  court  whereof  he  is 
a  judge  has  no  seal;  but  if  any  of  the  aforesaid  authenticated  copies 
shall  purport  to  be  sealed  or  signed  as  hereinbefore  respectively 
directed,  the  same  shall  respectively  be  admitted  in  evidence  in 
every  case  in  which  the  original  document  could  have  been  received 
in  evidence,  without  any  proof  of  the  seal  where  a  seal  is  necessary,  or 
of  the  signature,  or  of  the  truth  of  the  statement  attached  thereto, 
where  such  signature  and  statement  are  necessary,  or  of  the  judicial 
character  of  the  person  appearing  to  have  made  such  signature  and 
statement." 


§  11.  Moreover,  the  statute    passed  in  1855  to    enable  British    |  9a 
dij)]omatic  and  consular  agents  to  administer  oaths  and  to  perform 
notarial  acts,"  much  simplifies  the  proof  of  affidavits   sworn  "  in 


^  See  18    &  19   V.,  c.  119,  ^  97,  as   to    proof  of  proclamations    made    by- 
governors  of  colonies  under  the  Passengers'  Act,  1855. 

*  18  &  19  v.,  c.  42.     The  provisions  of  this  Act,  somewhat  enlarged,  are 

(2882) 


CHAP,  II.]       FOREIGN  AND  COLONIAL  DOCUMENTS.  17 

foreign  parts  out  of  Her  Majesty's  dominions  ;''^  for  it  enacts,  in 
§  3,  that  "  any  document  purporting  to  have  affixed,  impressed,  or 
subscribed  thereon  or  thereto  the  seal  and  signature  of  any  British 
ambassador,  envoy,  minister,  charge  d'affaires,  secretary  of  embassy 
or  of  legation,  consul-general,  consul,  vice-consul,  acting  consul, 
pro-consul,  or  consular  agent,  in  testimony  of  any  oath,  affidavit, 
affirmation,  or "  notarial  "  act  having  been  administered,  sworn, 
affirmed,  had,  or  done  by  or  before  him,  shall  be  admitted  in 
evidence,  without  proof  of  any  such  seal  and  signature  being  the 
seal  and  signature  of  the  person  whose  seal  and  signature  the  same 
purport  to  be,  or  of  the  official  character  of  such  person."  ' 

§  12.  Order  XXXVIII.  of  the  Eules  of  the  Supreme  Court,  1883,  ^  lo 
contains  an  important  clause  on  this  subject;  for,  after  providing,  in 
Bule  6,  that  "  all  examinations,  affidavits,  declarations,  affirmations, 
and  attestations  of  honour  in  causes  or  matters  depending  in  the 
High  Court,  and  also  acknowledgments  required  for  the  purpose  of 
enrolling  any  deed  in  the  Central  Office,  may  be  sworn  and  taken  in 
Scotland,  or  Ireland,  or  the  Channel  Islands,"  or  in  any  colony, 
island,  plantation,  or  place  tender  the  dominion  of  Her  Majesty  in 
foreign  parts,  before  any  judge,  court,  notary  public,  or  person 
lawfully  authorised  to  administer  oaths  ^  in  such  country,  colony, 
island,  plantation,  or  place  respectively,  or  before  any  of  Her 
Majesty's  consuls  or  vice-consuls  *  in  any  foreign  parts  out  of  Her 
Majesty's  dominions," — it  goes  on  to    provide,  that  "the  judges 

made  applicable  to  affidavits,  &c.,  used  in  the  Court  of  Probate,  or  in  the- 
Court  for  Divorce,  or  in  the  Irish  Court  for  Matrimonial  Causes.  See  §  31  of 
21  &  22  v.,  c.  95;  |  20  of  21  &  22  V.,  c.  108;  and  ^  16  of  34  &  35  V.,. 
c.  49,  Jr. 

'  §  4  enacts,  that  persons  swearing  or  affirming  falsely  under  the  Act  shall 
be  guilty  of  perjury,  and  |  5  enacts,  that  persons  forging  the  .seal  or  signa- 
ture of  any  such  diplomatic  or  consular  agent,  or  knowingly  tendering  in 
evidence  any  document  with  a  false  seal  or  signature  thereto,  shall  be  guilty 
of  felony.     See  post,  U  1567,  1568,  as  to  §?  1  &  2  of  the  Act. 

2  Or  the  Isle  of  Man,  see  16  &  17  V.,  c.  78,  |  6. 

'  In  Baillie  v.  Jackson,  3  De  Gex,  M.  &  G.  38,  the  Lds.  Js.  refused  to  take 
judicial  notice  of  the  .signature  of  the  Eegistrar  of  Deeds  in  St.  Vincent, 
which  was  appended  to  the  certificate  of  a  deed  as  registered  in  the  proper 
office  of  the  island,  it  being  admitted  that  the  Eegistrar  had  no  authority  to 
administer  an  oath. 

*  If  there  be  no  consul  or  vice-consul  accessible,  the  affidavit  may  be  sworn 
before  a  notary  public.     Cooke  v.  Wilby,  53  L.  J.  Ch.  592,  per  Chitty,  J. 
2  LAW  OF  EVID.— V.  I.  (2883) 


18  AVUAT  AFFIDAVITS  ARE  JUDICIALLY  NOTICED.  [PAET  I. 

and  other  officers  of  the  High  Court '  shall  take  judicial  notice  of 
the  seal  or  signature,  as  the  case  may  be,  of  any  such  court,  judge, 
notary  public,^  person,  consul,  or  vice-consul,  attached,  appended, 
or  subscribed  to  any  such  examinations,  affidavits,  affirmations, 
attestations  of  honour,  declarations,  acknowledgments,  or  to  any 
other  deed  or  document."  ^  A  similar  clause  is  also  inserted  in  the 
English  Chancery  Act  of  1852,"  the  Chancery  (Ireland)  Act,  1867,' 
the  Lunacy  Regulation  (Ireland)  Act,  1871,'^  the  Court  of  Admiralty 
Act,  1854,'  the  Court  of  Admiralty  (Ireland)  Act,  1807,'  the  Court 
of  Probate  Act,  1858,'  the  Court  for  Divorce  Act  of  the  same  year,'" 
the  Matrimonial  Causes  (Ireland)  Act,  1871,''  and  the  Crow&  Suits, 
&c..  Act,  1805.'' 

§  13.  Again,  the  Bankruptcy  Act  for  Scotland,'^  which  was 
passed  in  1856,  facilitates  the  proof  of  certain  Scottish  judicial 
documents  by  enacting  in  §  174,  that  "  all  deliverances," — which 
fantastical  term  includes  all  orders,  warrants,  judgments,  deci- 
sions, interlocutors,  or  decrees  under  that  Act,'* — "purporting  to 
be  signed  by  the  Lord  Ordinary  or  by  any  of  the  judges  of  the 
Court  of  Session,  or  by  the  sheriff  [or  sheriff  substitute],'^  as  well 
as  all  extracts  or  copies  thereof,  or  from  the  books  of  the  Court 
of  Session,  or  the  Sheriff  Court,  purporting  to  be  signed  or  certified 
by  any  clerk  of  court,  or  extracts  from  or  copies  of  registers  pur- 
porting to  be  made  by  the  keeper  thereof,  or  extractor,  shall  be 

^  Or  of  the  Chancery  of  the  County  Palatine  of  Lancaster,  see  16  &  17  V., 
c.  78,  §  7. 

^  See  ante,  n.  *,  p.  11. 

=•  See  Brooke  v.  Brooke,  50  L.  J.  Ch.  52R,  per  Fry,  J.;  L.  R.  17  Ch.  D. 
833,  S.  C.  The  same  law  applies  to  affidavits  made  in  matters  in  lunacy,  see 
16  &  17  v.,  c.  70,  §  57,  and  also  to  "all  affidavits,  declarations,  and  affirma- 
tions, to  be  used  before  any  registrar  or  other  officer  of  any  registry  office  in 
Great  Britain  or  Ireland,  for  any  purpose  connected  with  registration  of  deeds 
or  wills  or  other  documents  or  things,  under  the  authority  of  parliament," 
see  16  &  17  v.,  c.  78,  §6. 

*  15  &  10  v.,  c.  86,  'i  22,  which,  lor  some  occult  reason,  or  for  none,  was 
not  repealed  by  46  &  47  V.,  c.  49. 

*  30  &  31  v.,  c.  44,  I  81,  Ir.  «  34  &  35  Y.,  c.  22,  ^  25,  Jr. 

^  17  &  18  v.,  c.  78,  ^  8.  «  30  &  31  V.,  c.  114,  |  57,  Ir. 

9  21  «fe  22  v.,  c.  95,  I  32.  '»  21  &  22  V.,  c.  108,  ^  21. 

"  34  &  35  v.,  c.  49,  I  17,  Ir. 

"  28  &  29  v.,  c.  104,  ?  18.     See  also  ?  43  of  the  same  Act. 
"  19  &  20  v.,  c.  79.  '*  ?  4.  '^  Id. 

(2884) 


CHAP,  tl.]      WHAT  SIGNATURES  ARE  JUDICIALLY  NOTICED,  19 

judicially  noticed  by  all  courts  and  judges  in  England,  Ireland, 
and  Her  Majesty's  other  dominions,  and  shall  be  received  as  prima 
facie  evidence,  without  the  necessity  of  proving  their  authenticity  or 
correctness,  or  the  signatures  appended,  or  the  official  character  of 
the  persons  signing,  and  shall  be  sufficient  warranty  for  all  diligence 
and  execution  by  law  competent." 

§  14/  In  America,  the  signature  of  the  Chief  of  the  Executive  |  12 
of  the  State  is  recognised  without  proof  ;  ^  and  so,  in  Louisiana, 
are  also  the  signatures  of  executive  and  judicial  officers  to  all 
official  acts.^  The  English  doctrine  certainly  does  not  extend 
this  length,  though  it  is  difficult  to  define  its  exact  limits.  On 
the  one  hand,  the  signatures  of  the  judges  of  the  Supreme  Court 
of  Judicature,  and  of  the  old  siaperior  equity  and  common  law  j  udges, 
must  be  judicially  noticed,  if  appended  to  any  judicial  or  official 
document ;  *  and  the  legislature  has  attached  the  same  credit  to 
the  signatures  of  the  judges,  commissioners  and  registrars  of  the 
old  Courts,'^  and  of  the  judges  and  registrars  of  the  new  Courts,"  of 
Bankruptcy  in  England,  and  of  the  judges,  registrars,  and  chief 
clerks,  of  the  Court  of  Bankruptcy  and  Insolvency,  now  called  the 
Court  of  Bankruptcy,"  in  Irelaijd.^  So,  in  all  proceedings  under 
the  winding-up  clauses  of  the  Companies  Act,  1862,  judicial  notice 
must  be  taken  of  the  signatures  of  the  officers  of  the  old  Courts  of 
Chancery  in  England  or  Ireland,  or  of  the  Courts  of  Bankruptcy  in 
England  or  Ireland,  or  of  the  Court  of  Session  in  Scotland,  or  of 
the  registrar  of  the  Court  of  the  Vice- Warden  of  the  Stannaries, 
whenever  such  signatures  are  subscribed  to  any  document  made, 
issued,  or  signed  under  such  clauses,  or  any  official  copy  thereof.^ 
Many  other  signatures  attached  to  documents,  which  are  rendered 
admissible  by  statutes,  need  not  be  proved;  '"  and  it  seems  also  that, 


^  Gr.  Ev.  ?  6,  in  part,  as  to  first  four  lines. 

*  Jones  V.  Gale's  Exors.,  4  Mart.  635. 

3  Id.  ;  Wood  V.  Fitz,  10  Mart.  196.  *  8  &  9  V.,  c.  113,  §  2,  ante,  g  7. 

*  24  i&  25  v.,  c.  134,  ?,  204  ;  32  &  33  V.,  c.  71,  ?  109. 
«  46  &  47  v.,  c.  52,  |  137,  cited  ante,  p.  10,  n.  '«. 
'35&36  v.,  c.  58,  ?  6,  Ir. 

8  20  &  21  v.,  c.  60,  I  362,  Ir.,  cited  ante,  p.  11,  n.  1. 
»25&26  v.,  c.  89,  ?  125. 

'"  8  &  9  v.,  c.  113,  ?  1,  ante,  ?  7.     A  partial  list  of  the  more  important  of 
these  documents  will  be  given  in  Part  iii.  Ch.  iv.,  on  Public  Documents. 

(2885) 


20  GAZETTES  WHEN  JUDICIALLY  NOTICED.  [pART  I. 

in  practice,  no  proof  is  required  of  the  handwriting  of  the  governor 
of  Holloway  Prison/  which  for  all  purposes  of  law  is  now  regarded 
as  the  Queen's  Prison.^  On  the  other  hand,  it  appears  highly 
probable  that  the  courts  would  not  recognise  the  signatures  of 
the  Lords  of  the  Treasury  to  their  official  letters  ;  ^  and  it  is 
even  a  matter  of  some  doubt  whether  the  royal  sign -manual  would 
be  judicially  noticed.  On  one  occasion,*  before  the  House  of  Peers, 
a  warrant  purporting  to  be  so  signed  was  admitted  without  proof, 
but  as  the  party  putting  in  this  document  was  prepared  to  prove  it 
if  necessary,  the  acquiescence  of  the  opposite  counsel  amounts  to 
little.  In  another  case,^  the  judges  decided  that  the  King's  sign- 
manual  was  admissible  to  show  His  Majesty's  intention  of  pardoning 
a  prisoner ;  and,  in  a  third  case,^  the  sign-manual  was  actually 
produced  for  the  very  purpose  ;  but  on  neither  of  these  occasions 
was  any  question  raised  as  to  the  necessity  of  proving  the  signature 
to  be  genuine. 

§  15.  The   judges  will  take  notice  of  the    London,  Dublin,  or    ^  13 
Edinburgh  Gazette  on  its  mere  production,  and  it  is  unnecessary  to 
prove  that  it  was  bought  at  the  office  of  the  Queen's  printer,  or  to 
offer  any  evidence  as  to  whence  it  came.' 

§  16.*  It  is  unnecessary  to  prove  facts  which  may  certainly  be    §  14 
known  from  the  invariable  course  of  nature  ;  such  as  that  a  man 
is  not  the  father  of  a  child,  where  non-access  is  already  proved  until 
within  six  months  of  the  woman's  delivery  ;  ®  neither  is  it  necessary 
to  prove  the  coui'se  of  time,"*  or  of  the  heavenly  bodies  : ''  nor  the 

>25&26  v.,  c.  104,  §  12. 

^  See  Alcock  v.  Whatmore,  8  Dowl.  615  ;  Short  v.  Williams,  4  Dowl.  .357  ; 
Fogarty  v.  Smith,  Id.  598,  n.  ;  5  &  6  V.,  c.  22. 

*  R.  V.  Jones,  2  Camp.  131.  per  Ld.  Ellcnborongh.  See  12  &  13  V.,  c.  89, 
cited  post,  ?  HOG  ;  and  31  &  .32  V.,  c.  37,  cited  post,  P^  1527. 

*  Ld.  Melville's  case,  29  How.  St.  Tr.  706. 

5  R.  V.  Miller,  2  AV.  Bl.  797  ;  1  Lea.  74,  S.  C.  *  R.  v.  Gully,  1  Lea.  98. 

^  R.  V.  Forsyth,  R.  &  R.  274  ;  31  &  32  V.,  c.  37,  U  2,  5,  cited  post,  ?  1527. 
See  R.  V.  Holt,  5  T.  R.  436.  The  Irish  case,  R.  v.  Wallace,  17  Jr.  Law  R.,  N. 
S.  206,  can  no  longer  be  relied  upon.     See  post,  |  1527. 

^  Gr.  Ev.  §  5,  in  part. 

»  Heathcote's  Divorce,  1  Macq.  Sc.  Cas.  H.  of  L.  277 ;  R.  v.  Luffe,  8  East, 
202.  ">  See  Bury  r.  Blogg,  12  Q.  B.  877,  882. 

"  However,  in  Collier  tj.  Nokes,  2  C.  &  Kir.  1012,  Wilde,  C.  J.,  is  reported 

(2886) 


CHAP.  II.]  MATTER;5  JUDICIALLY  NOTICED.  21 

ordinary  public  fasts  and  festivals;'  nor  the  commencement  or 
ending  of  the  legal  sittings;^  nor  the  coincidence  of  the  years  of 
the  reign  of  any  sovereign  of  this  country  with  the  years  of  our 
Lord  ;'^  nor  the  coincidence  of  days  of  the  week  with  days  of  the 
month;*  nor  the  order  of  the  months;^  nor  the  meaning  of  the 
word  "month,"  which  at  common  law  and  in  equity**  used  to  mean 
four  weeks,  but  which  in  the  ecclesiastical  courts,^  and  also  when 
used,  either  in  mercantile  transactions  in  the  city  of  London,^  or  in 
bills  of  exchange  or  promissory  notes,"  or  in  any  statute  passed  since 
the  commencement  of  1851,'"  or,  in  the  Rules  of  the  Supreme 
Court,"  or  in  any  judgment  or  order  of  that  court,'^  means  a 
calendar  month, ''^  unless  words  be  added  showing  lunar  month  to 
be  intended;  nor  the  meaning  of  other  words  in  the  vernacular 
language,'*  as  for  instance,  the  word  "time,"  which,  unless  speci- 

to  have  held  that  he  could  not  judicially  notice  at  what  hour  the  sun  set  in 
the  month  of  November.  See,  also,  Tutton  v.  Darke,  5  H.  &  N.  649,  650, 
per  Pollock,  C.  B.  Sed  qu.? 

'  6  Vin.  Abr.  492,  pi.  8—44.  '  6  Vin.  Abr.  490,  pi.  32. 

*  Holman  v.  Burrow,  2  Ld.  Ray.  795;  R.  v.  Pringel,  2  M.  &  Rob.  276. 

*  6  Vin.  Abr.  492,  pi.  0,  7,  8;  Hoyle  v.  Ld.  Cornwallis,  1  Str.  387;  Page 
V.  Faucet,  Cro.  El.  227;  Harry  v.  Broad,  2  Salk.  626;  Brough  v.  Parkings,  2 
Ld.  Ray.  994,  per  Ld.  Holt.  Thus  the  Court  is  bound  judicially  to  notice 
what  days  of  the  month  full  on  Sundays,  Hanson  v.  Shackelton,  4  Dowl.  48; 
Pearson  v.  Shaw,  7  Ir.  Law  R.  1.  ^  R  v.  Brown,  M.  &  M.  164. 

^  See  Cons.  Ord.  Ch.  1860,  Ord.  xxxvii.,  r.  10,  now  annulled. 

''  Bluck  V.  Rackman,  5  Moo.  P.  C.  R.  308,  per  Knight-Bruce,  V.-C;  Man 
V.  Ricketts,  2  Coop.  21,  per  Ld.  Lynhurst;  Simpson  v.  Margitson,  11  Q.  B. 
23;  Johnstone  v.  Hudleston,  4  B.  &  C.  932;  per  Bayley,  J. 

**  Turner  v.  Barlow,  3  Post.  &  Fin.  946,  per  Erie,  C.  J. 

M5  &  46  v.,  c.  61,  §  14  subs.  4,  and  §  89. 

"13  &  14  v.,  c.  21,  ?.|4,  8. 

"  Ord.  Ixvi.  r.  1,  "Where  by  these  Rules,  or  by  any  judgment  or  order 
given  or  made  after  [the  24th  of  October,  1883,]  time  for  doing  any  act  or 
taking  any  proceeding  is  limited  by  months,  and  where  the  word  'month' 
occurs  in  any  document  which  is  part  of  any  legal  procedure  under  these 
Rules,  such  time  shall  be  comjiuted  by  calendar  months,  unless  otherwise 
expressed."  '^  Id. 

"  As  to  the  meaning  of  a  "calendar  month"  as  applied  to  imprisonment, 
see  Migotti  v.  Colville,  48  L.  J.,  C.  P.  695,  per  Ct.  of  App.;  S.  C.  nom. 
Nigotti  V.  Colville,  14  Cox,  305. 

"  Clementi  v.  Golding,  2  Camp.  25,  as  to  the  meaning  of  the  word  "book"; 
Com.  V.  Kneeland,  20  Pick.  229;  6  Vin.  Abr.  491,  492,  pi.  6,  7;  R.  v.  Wood- 
ward, 1  Moo.  C.  C.  323.  In  that  case  the  prisioner  was  indicted  under  7  &  8 
G.  4,  c.  30,  §  17,  which  made  it  a  felony  maliciously  to  burn  any  stack  of 
pulse,  for  setting  fire  to  a  stack   of  beans,  and   the  judges   unanimously  held 

(2887) 


22  MATTERS  JUDICIALLY  NOTICED.  [PAET  I. 

fieally  stated,  indicates  in  Great  Britain  "Greenwich  mean  time,"and 
in  Ireland  "Dublin  mean  time;'"  or  the  word  "distance,"  which, 
except  under  special  circumstances,  is  measured  as  the  crow  flies  ;^ 
nor  the  legal  weights  and  measures,^  nor  the  positive  value  of  the 
coin  of  the  realm;*  nor  its  relative  value  at  different  periods  of 
time;^  nor,  it  seems,  any  matters  of  public  history,  affecting  the 
whole  people.** 

§  17.^  Courts  also  notice  the  territorial  extent  of  the  jurisdiction    §  15 
and  sovereignty  exercised  de  facto  by  their  own  government;^  and 

that  they  were  hound  to  notice  that  heans  were  a  species  of  pulse.  So  in  R. 
*).  Swatkins,  4  C.  &  P.  548,  Patteson,  J.,  after  conferring  with  Bosanquet,  J., 
judicially  noticed  that  barley  was  corn,  in  an  indictment  for  arson  under  the 
Act  just  mentioned.  In  R.  v.  Beaney,  R.  &  R.  416,  however,  the  judges 
refused  to  notice  that  a  colt  was  an  animal  of  the  horse  species.  There  the 
indictment  charged  the  prisoner  with  stealing  two  colts.  By  the  Act  then 
in  force,  the  benefit  of  clergy  was  taken  away  from  persons  stealing  "horses, 
geldings,  or  mares";  and  as  colts  were  not  mentioned  co  yiomine,  the  prisoner 
was  merely  convicted  of  simple  larceny.  '43  &  44  V.,  c.  9,  §  1. 

"  Mouflet  V.  Cole,  7  Law  Rep.,  Ex.  70;  41  L.  J.,  Ex.  28,  S.  C. ;  and  8  Law  Rep., 
Ex.  32;  42 L.  J.,  Ex.  8,  S.  C,  per  Ex.  Ch. 

^Hockin  v.  Cooke,  4  T.  R.  314;  O'Donnell  v.  O'Donnell,  1  L.  R.  Jr.  284; 
41  &  42  v.,  c.  49. 

*  Glo.s.sop  V.  Jacob,  1  Stark.  R.  69;  Kearney  v.  King,  2  B.  &  Al.  301. 

5 Bryant  v.  Foot,  3  Law  Rep.,  Q.  B.  7;  37  L.  J.,Q.  B.  217;  9  B.  &  S.  444, 
S.  C.  *  Bk.  of  Augusta  v.  Earle,  13  Pet.  590. 

''  Gr.  Ev.  ^  6,  as  to  first  seven  lines,  in  great  part. 

^  See  6  &  7  V.,  c.  94,  which, — after  reciting  that  "by  treaty,  capitulation, 
grant,  usage,  sufferance,  and  other  lawful  means,  Her  Majesty  hath  power 
and  jurisdiction  wdthin  divers  countries  and  places  out  of  Her  Majesty's 
dominions;  and  whereas  doubts  have  arisen  how  far  the  exercise  of  such 
power  and  jurisdiction  is  controlled  by  and  dependent  on  the  laws  and 
customs  of  this  realm;  and  it  is  expedient  that  such  doubts  should  be 
removed:" — enacts,  that  "it  is  and  .shall  be  lawful  for  Her  Maje.sty  to  hold 
exercise,  and  enjoy  any  power  or  juri.sdiction  which  Her  Majesty  now  hath, 
or  may  at  any  time  hereafter  have,  within  any  country  or  place  out  of  Her 
Maje-sty's  dominions,  in  the  same  and  as  ample  a  manner  as  if  Her  IMajesty 
had  acquired  such  power  or  jurisdiction  by  the  cession  or  conquest  of 
territory. ' ' 

^  2  enacts,  that  "every  act,  matter,  and  thing  which  may  at  any  time  be 
done,  in  pursuance  of  any  such  power  or  jurisdiction  of  Her  Majesty,  in  any 
country  or  place  out  of  Her  Majesty's  dominions,  shall  in  all  courts  ecclesiasti- 
cal and  temporal,  and  elsewhere  within  Her  Majesty's  dominions,  be  and  be 
deemed  and  adjudged  to  be,  in  all  cases,  and  to  all  intents  and  purposes  what- 
soever, as  valid  and  elfectual  as  though  the  .same  had  been  done  according  to 
the  local  law  then  in  force  within  such  country  or  place." 

I   3  enacts,  that  "if  in   any  suit   or   other   proceedings,    whether   civil   oi 

(2888) 


CHAP.   II.]  MATTERS  JUDICIALLY  NOTICED.  23 

the  local  divisions  of  their  country,  such  as  states,'  provinces,^ 
counties,'^  counties  of  cities,  cities,*  towns,  parishes,  and  the  like, 
so  far  as  political  government  is  concerned  or  affected  ;  but  not  the 
relative  positions  of  such  local  divisions,  nor  their  precise  boun- 
daries, further  than  they  may  be  described  in  public  statutes.'^ 
Thus  the  courts  refused  to  say  judicially  that  "  a  part  of  the 
coast  called  Suffolk"  was  not  in  Kent,  or  that  "Orfordness,  in  the 
county  of  Suffolk,"  was  not  situated  between  the  North  Foreland 
and  Beachy  Head."  Neither  will  they  notice  that  a  particular  place 
is  within  a  certain  city;^  nor  that  a  particular  town  is  within  a 
certain  diocese;*  nor  that  a  street  mentioned  in  the  pleadings  is  a 

criminal,  in  any  court  ecclesiastical  or  temporal  within  Her  Majesty's 
dominions,  any  issue  or  question  of  law  or  of  fact  shall  arise,  for  the  due 
determination  whereof  it  shall,  in  the  opinion  of  the  judge  or  judges  of  such 
court,  be  necessary  to  produce  evidence  of  the  existence  of  any  such  power 
or  jurisdiction  as  aforesaid,  or  of  the  extent  thereof,  it  shall  be  lawful  for  the 
judge  or  judges  of  any  such  court,  and  he  or  they  are  hereby  authorised  to 
transmit,  under  his  or  their  hand  and  seal  or  hands  and  seals,  to  one  of  Her 
Majesty's  principal  secretaries  of  state,  questions,  by  him  or  them  properly 
framed  respecting  such  of  the  matters  aforesaid  as  it  may  be  necessary  to 
ascertain  in  order  to  the  due  determination  of  any  such  issue  or  question  as 
aforesaitl  ;  and  such  secretary  of  state  is  hereby  empowered  and  required, 
within  a  reasonable  time  in  that  behalf,  to  cause  proper  'and  sufficient  answers 
to  be  returned  to  all  such  questions,  and  to  be  directed  to  the  said  judge  or 
judges,  or  their  successors  ;  and  such  answers  shall,  ujjon  production  thereof, 
be  final  and  conclusive  evidence,  in  such  suit  or.  other  proceedings,  of  the 
several  matters  therein  contained  and  required  to  be  ascertained  thereby." 

1  Whyte  V.  Rose,  4  P.  &  D.  199 ;  3  Q.  B.  495,  S.  C.  There  the  Court 
noticed,  that  by  "the  Kingdom  of  Ireland"  was  meant  that  part  of  the 
United  Kingdom  called  Ireland.  '"'  Id. 

^  Deybel's  case,  4  B.  &  A.  242  ;  2  Inst.  557,  where  it  is  said,  "the  King's 
Courts"  "  take  notice  of  all  the  counties  of  England."  In  R.  v.  Isle  of  Ely, 
15  Q.  B.  827,  the  court  judicially  noticed  that  the  Isle  of  Ely  was  a  division  of 
a  county  in  the  nature  of  a  riding,  and,  as  such,  prima  facie  liable  to  repair 
bridges  within  it.  So,  also,  in  Harris  v.  O'Loghlen,  5  I.  R.  Eq.  514,  520,  the 
Irish  M.  R.  took  judicial  notice  of  the  baronies  in  an  Irish  county,  such 
baronies  having  been  enumerated  in  13  &  14  V.,  c.  68,  Sch.  A. 

*  R.  V.  St.  Maurice,  16  Q.  B.  908. 

^  Deybel's  case,  4  B.  &  A.  242  ;  2  Inst.  557  ;  Fazakerley  v.  Wiltshire,  1 
Str.  469  ;  R.  v.  Burridge.  3  P.  Wms.  497  ;  Thorne  v.  Jackson,  3  Com.  B. 
661. 

«  Deybel's  case,  4  B.  &  A.  243.  See,  also,  Kirby  v.  Hickson,  1  L.  M.  &  P. 
364,  where  the  Court  of  C.  P.  refused  to  take  judicial  notice  that  Park -street, 
Grosvenor-square,  in  the  county  of  Middlesex,  was  within  twenty  miles  of 
Russel-square,  in  the  same  county. 

''  Brune  v.  Thompson,  2  Q.  B.  789,  in  which  case  the  plaintiff  was  non- 
suited for  not  proving  that  the  Tower  of  London  was  within  the  City  of 
London.  *  R.  v.  Simpson,  2  Ld.  Ray.  1379. 

(2889) 


24  MATTERS  JUDICIALLY  NOTICED.  [paET  I. 

public  thoroughfare,  though  the  word  "  street,"  via  strata,  would 
rather  imply  that  it  was;'  nor  that  a  particular  street  is  not  in  a 
certain  county,  though  it  be  notorious  that  a  street  bearing  the 
same  name  is  in  another  county;"  nor  that  a  city  mentioned  in  a 
document  is  in  a  particular  country,  even  though  it  appear  that 
one  with  a  similar  name  is  the  capital  of  such  country.^  They 
have,  however,  noticed  that  the  Queen's  Prison  is  situated  in 
England/ 

§  18.^  The  courts  will  judicially  recognise  the  political  consti-  g  is 
tution  or  frame  of  their  own  government  ;  its  essential  political 
agents  or  public  officers  sharing  in  its  regular  administration  ;  and 
its  essential  and  regular  political  operations  and  actions.  Thus  all 
tribunals  notice  the  accession  and  demise  of  the  sovereign  of  their 
country  f  the  heads  of  departments,  and  the  principal  officers  of 
state,  whether  past  or  present  ;^  the  marshals  and  sheriffs,  but 
not  the  deputies  of  these  functionaries  f  the  existence  of  a  war 
in  which  their  country  is  engaged,  at  least  when  such  war  is 
recognised  in  public  proclamations  or  Acts  of  Parliament ;"  the 
days  of  special  public  fasts  and  thanksgivings,  when  recognised  in 
like  manner ;  the  stated  days  of  general   political  elections  ;  the 


1  Grant  v.  Moser,  5  M.  &  Gr.  129,  per  Tindal,  C.  J. 

"^  Humphrey's  v.  Budd,  9  Dowl.  1000.     See  Thorne  v.  Jackson,  3  Com.  B.  661. 

^  Kearney  v.  King,  2  B.  &  A.  301.  There  the  declaration  was  on  a  bill 
drawn  and  accepted  at  Dublin,  to  wit,  at  Westminster,  for  542?.  The  court 
held  that,  upon  this  declaration,  the  bill  must  be  taken  to  have  been  drawn 
in  England  for  English  money,  and  therefore,  that  proof  of  a  bill  drawn 
at  Dublin  in  Ireland  for  Irish  money,  which  is  of  less  value,  was  a  fatal 
variance.  *  Wickens  v.  Goatly,  11  Com.  B.  666. 

^  Gr.  Ev.  ?  6,  in  part. 

«  Holman  v.  Burrow,  2  Ld.  Ray.  794  ;  R.  v.  Pringle,  2  M.  &  Rob.  276. 

'  R.  V.  Jones,  2  Camp.  131  ;  Bennett  v.  The  State  of  Tennessee,  Mart.  & 
Y.  133  ;  Whaley  v.  Carlisle,  17  Ir.  Law  R.,  N.  S.  792.  In  this  last  case,  the 
court,  in  1866,  judicially  noticed  that  Ld.  Hawkesbury  had  been  foreign 
minister  in  1803.  *  See  Grant  v.  Bagge,  3  East,  128. 

8  Dolder  v.  Ld.  Huntingfield,  11  Ves.  292;  R.  v.  De  Berenger,  3  M.  &  Sel. 
67.  It  seems  that  when  war  is  neither  publicly  proclaimed,  nor  noticed  in 
any  statute,  the  question  of  its  existence  is  one  solely  for  the  jury,  1  Hale, 
164  ;  Post.  C.  L.,  d.  1,  c.  2,  ?  12  ;  and  the  existence  of  war  between  foreign 
countries  will  not  be  judicially  noticed,  Dolder  v.  Ld.  Huntingfield,  11  Ves. 
292,  per  Ld.  Eldon. 

(2890) 


CHAP.  II.]  MATTERS  JUDICIALLY  NOTICED.  25 

date  and  place  of  the  sittings  of  the  legislature;'  and,  in  short,  to 
borrow  the  language  of  the  court  in  Taylor  v.  Barclay,  "  all  public 
matters  which  affect  the  government  of  the  country."  ^  But  they 
will  not  recognise  private  orders  made  at  the  council-table,^  for 
these  are  matters  of  particular  concernment;  nor,  it  seems,  any 
orders  of  Council,  even  though  they  regard  the  Crown  and  the 
government;  *  nor  the  transactions  on  the  journals  of  either  House 
of  Parliament.^ 

§  19.  Lastly,  each  Division  of  the  Supreme  Court  is  bound  ?  17 
judicially  to  notice  its  own  rules  and  course  of  proceeding;® 
as  well  as  the  rules  and  practice  of  the  other  Divisions;' 
and  also  the  limits  of  their  respective  jurisdictions,^  as,  for 
instance,  that  the  Probate,  Divorce,  and  Admiralty  Division  has  so 
far  jurisdiction  over  the  personal  estate  of  an  intestate  British  sub- 
ject, whether  situated  in  Ireland,  the  colonies,  cr  any  foreign  country, 
that  it  may  grant  letters  to  administer  such  property,  and,  indeed, 
must  do  so  before  the  administrator  can  sue  in  any  English  Court 
in  respect  thereof.^  They  will  further  notice  the  privileges  of  their 
officers  ^"  and  solicitors.''  which  last  term, — probably,  as  being  more 
euphonistic  than  "  attorneys," — is  now  made  by  the  legislature  to 
include  those  functionaries  as  well  as  the  heretofore  proctors  of  the 
Ecclesiastical  Courts.'"     So  all  Courts  will  judicially  notice  the  fact 


^  E.  V.  Wilde,  1  Lev.  396;  1  Doug.  97,  n.  41;  Birt  v.  Rothwell,  1  Ld.  Eay. 
210,  343.  2  2  Sim.  221 

3  6  Vin.  Abr.  490. 

*  Att.-Gen.  v.  Theakstone,  8  Price,  89.     See  post,  U  1527,  1664. 

*  R.  V.  Knollys,  1  Ld.  Ray.  10,  15.  Copies  of  tlie  journals  are  now  ad- 
missible, if  purporting  to  be  printed  by  the  official  printers,  8  &  9  V.,  c.  113, 
§  3,  cited  ante,  ^  7. 

«  Dobson  V.  Bell,  2  Lev.  176;  Pugh  v.  Robinson,  1  T.  R.  118. 

'  Lane's  case,  2  Rep.  16  b. ;  Worlich  v.  Massey,  Cro.  Jac.  67;  Mounson 
V.  Bourn,  Cro.  Car.  526;  Reidy  v.  Pierce,  11  Ir.  Law  R.,  N.  S.  374,  per  Pigot, 
C.  B. ;  Caldwell  v.  Hunter,  10  Q.  B.  85,  86. 

«  Doe  V.  Caperton,  9  C.  &  P.  116.  See  Spooner  v.  Juddow,  6  Moo.  P.  C. 
R.  257.  *  See  Whyte  v.  Rose,  3  Q.  B.  493,  per  Ex.  Ch. 

'»  Ogle  V.  Norcliffe,  2  Ld.  Ray.  869. 

"  Stokes  V.  Mason,  9  East,  426;  Chatland  v.  Thornley,  12  East,  544; 
Hunter  v.  Neck,  3  M.  &  Gr.  181;  3  Scott,  N.  R.  448,  S.  C;  Walford  v.  Fleet- 
wood, 14  M.  &  W.  449. 

12  Sup.  Ct.  of  Jud.  Act,  1873,  36  &  37  V.,  c.  GG,  I  87. 

(2891) 


26  MATTERS  JUDICIALLY  NOTICED.  [PAST  I. 

that  the  assizes,  though  constituting  for  some  purposes  one  legal 
day,  may  be  continued  from  day  to  day  with  or  without  adjournment, 
and  often  occupy  several  natural  days,' — the  existence  of  Courts  of 
general  jurisdiction," — the  powers  of  the  Ecclesiastical  Courts, — and 
the  jurisdiction  of  the  Bankruptcy  Courts,^  together  with  all  general 
rules  made  by  the  Lord  Chancellor  with  the  concurrence  of  the 
President  of  the  Board  of  Trade,  for  carrying  into  effect  the  objects 
of  the  Bankruptcy  Act,  1883/  So,  all  general  orders  or  regulations, 
which  from  time  to  time  may  be  made  by  the  Board  of  Trade,  for 
regulating  matters  of  an  administrative  character  under  the  same 
Act,  must  be  judicially  noticed,  provided  they  be  printed  by  the 
Queen's  printers,  and  purport  to  be  issued  under  the  authority 
of  the  Board.^  So  the  rules  made  under  "  the  Banki'uptcy,  Ire- 
land, Amendment  Act,  1872,"  must  be  judicially  noticed;**  and  the 
same  law  applies  to  the  rules  made  by  the  Board  of  Trade  under 
the  Gas  and  Water  Works  Facilities  Act,  1873,' — to  those  made 
either  by  Order  in  Council,  or  by  the  Committee  of  Council,  under 
the  Crown  Office  Act,  1877,^ — to  those  made  by  the  Lord  Chancellor, 
under  the  Summary  Jurisdiction  Act,  1879,® — to  those  made  by  the 
Lord  Chancellor  with  the  assistance  of  the  Registrar,  under  the 
Land  Transfer  Act,  1875,'° — to  those  made  under  the  Landlord 
and  Tenant  (Ireland)  Act,  1870,  either  by  the  Court  for  Land 
Cases  Reserved,  or  by  the  Privy  Council  in  Ireland," — and  to  those 
made  by  the  Irish  Land  Commission  under  the  Land  Law  (Ireland) 
Act,  1881.'' 

§  20.  It  does  not  seem  clear,  whether  or  not  the  judges  of  the    §  19 
Supreme  Court  of  Judicature  are  bound  to  notice  who  ai*e  the  judgea 
in  inferior  courts  of  record.     The  weight  of  American  authorities 
is  in  favour  of  recognising  them ; "  but  the  Court  of  Queen's  Bench 


'  Wliitaker  v.  Wisby,  12  Com.  B.  .56,  59. 
^  Tregany  v.  Fletcher,  1  Ld.  Eay.  154. 
•'  4G  &  47  v.,  c.  52,  §?  92,  et  seq.  *  Id.  ^  127. 

^  Bkruptcy.  Rules,  18S3,  r.  257. 

«  35  &  36  v.,  c.  58,  ?  124,  Ir.  ^  .36  &  .37  V.,  c.  89,  §  14. 

8  40  &  41  v.,  c.  41,  ?§  3,  5.  s  42  &  43  V.,  c.  49,  §  29. 

1"  38  &  .39  v.,  c.  87,  §  111.  "  33  &  34  V.,  c.  46,  U  31,  41,  Ir. 

12  44  &  45  v.,  c.  49,  |  50,  snbs.  2,  Ir. 

'^  Hawks  V.  Kennebec,  7  Mass.  461;  Ripley  «.  Warren,  2  Pick,  592;  Despau 
V.  Swindler,  3  Mart.  N.  S.  705. 

(2892) 


CHAP.  II.]  REFRESHING  MEMORY  OF  JUDGE.  27 

not  very  long  ago  refused  to  notice  who  was  judge  of  the  then  Court 
of  Review.'  With  regard  to  inferior  courts  of  limited  jurisdiction, 
the  Supreme  Court  will  not,  unless  when  called  upon  to  review  their 
judgments,^  take  cognizance  of  the  customs  and  proceedings  there- 
in,^ except  so  far  as  they  are  regulated  by  statute.* 

§  21.^  In  all  these  and  the  like  cases,  where  the  memory  of  the  §  20 
judge  is  at  fault,  he  resorts  to  such  documents  or  other  means  of 
reference  as  may  be  at  hand,  and  he  may  deem  worthy  of  confi- 
dence.® Thus,  if  the  point  at  issue  be  a  date,  the  judge  will  refer 
to  an  almanac  ;  Mf  it  be  the  meaning  of  a  word,  to  a  dictionary  ;  * 
if  it  be  the  construction  of  a  statute,  to  the  printed  copy  ;  ®  or,  in 
case  that  appears  to  be  incorrect,  to  the  parliament  roll.'"  In  some 
instances,  the  judge  has  refused  to  take  cognizance  of  a  fact,  unless 
the  party  calling  upon  him  to  do  so  could  produce  at  the  trial  some 
document  by  which  his  memory  might  be  refreshed  ;  as  was  the 
case  in  Van  Omeron  v.  Dowick,"  where  Lord  Ellenborough  declined 
to  take  judicial  notice  of  the  King's  proclamation,  the  counsel  not 
being  prepared  with  a  copy  of  the  Gazette  in  which  it  was  published. 
So,  also,  in  R.  v.  Withers,  tried  before  Mr.  Justice  Buller,  in  which 
case  it  became  a  material  question  to  consider  how  far  the  prisoner 
owed  obedience  to  his  sergeant,  and  this  depended  on  the  articles  of 
war,  which  were  not  produced  at  the  trial,  the  judges  thought  that 


1  Van  Sandau  v.  Turner,  6  Q.  B.  773,  786. 

2  Chitty  V.  Dendy,  3  A.  &  E.  324  ;  4  N.  &  M.  842,  S.  C. 

^  R.  V.  U.  of  Cambridge,  2  Ld.  Ray.  1334.  In  that  case  the  Court  refused 
to  notice  tliat  the  University  Court  in  Cambridge  proceeded  according  to  the 
rulesof  the  civil  law.  See,  also,  Lane's  case,  2  Rep.  16  b.  n.  d  ;  Peacock  v. 
Bell,  1  Wms.  Saund.  75  ;  and  Dance  v.  Robson,  M.  &  M.  295. 

*  As  in  the  case  of  the  Court  of  the  V.-Ch.  of  Oxford,  which,  under  the  Act 
of  17&  18  v.,  c.  81,  ?  45,  must  now,  in  all  matters  of  law,  be  governed  by  the 
common  aad  statute  law,  and  not  by  the  rules  of  the  civil  law. 

*  Gr.  Ev.  I  6,  as  to  first  three  lines.  «  Gresl.  Ev.  295. 
^  Page  V.  Faucet,  Cro.  El.  227.     See  Tutton  v.  Darke,  5  H.  &  N.  649. 

*  Clementi  v.  Golding,  2  Camp.  25. 

®  Since  the  commencement  of  the  year  1866,  a  copy  of  the  Public  General 
Acts  has  been  printed  each  year  by  Messrs.  Eyre  and  Spottiswoode,  as  printers 
to  the  Queen,  for  the  proprietors  of  the  Law  Journal,  and  has  been  published  in 
the  thirty-fifth  and  siicceeding  volumes  of  that  excellent  work. 

1"  R.  V.  Jeff'ries,  1  Str.  446 ;  Spring  v.  Eve,  2  Mod.  240. 

"  2  Camp.  44. 

(2893) 


28  BEFRESHING  MEMORY  OF  JUDGE.  [PAKT.  I. 

they  ought  to  have  been  produced/  But  in  many  other  cases,  the 
courts  have  themselves  made  the  necessary  inquiries,  and  that,  too, 
■without  strictly  confining  their  researches  to  the  time  of  the  trial. 
Thus,  to  give  but  a  few  examples  :  in  Taylor  v.  Barclay,  where  the 
question  was,  whether  the  federal  republic  of  Central  America  had 
been  recognised  by  the  British  Government  as  an  independent  state, 
the.  Vice-Chancellor  sought  for  information  from  the  Foreign 
Office  ;  ^  in  Chandler  v.  Grieves,  the  Court  of  Common  Pleas 
directed  an  inquiry  to  be  made  in  the  Court  of  Admiralty  as  to  the 
martime  law  ;  ^  in  Doe  v.  Lloyd,  the  same  court  caused  an  inquiry 
to  be  made  by  their  officers,  as  to  the  practice  of  the  Inrolment 
Office  in  the  Court  of  Chancery  ;  *  and  in  Willoughby  v.  Willoughby, 
Lord  Hardwicke  himself  asked  an  eminent  conveyancer  respecting 
the  existence  of  a  general  rule  of  practice  in  that  branch  of  the 
profession.^ 

1  Cited  by  Buller,  J.,  in  R.  v.  Holt,  5  T.  R.  446. 

2  2  Sim.  231.     See  also  The  Charkieh,  42  L.  J.  Adra.  17. 
»  2  H.  Bl.  606,  n.  a. 

*  1  M.  &  Gr.  685.     The  court  in  that  case  acted  on  the  authority  of  Worsley 
V.  Filisker,  2  Roll.  R.  119. 
M  T.  R.  772.     See,  also,  Sup.  Ct.  Rules,  1883,  Ord.  li.  rr.  7,  8. 


(2894) 


CHAP.  III.]  TRIAL  BY  JURY,  LESS  TRUSTED  NOW  THAN  FORMERLY.      29 


CHAPTER  III. 

HOW     QUESTIONS     OF     FACT     TRIED FUNCTIONS     OF      JUDGE     IN 

JUKY  TRIALS. 

§  21a.  Trial  by  Jury, — an  institution  which,  at  least  in  a 
rudimentary  form,  may  be  traced  back  to  the  times  of  our  Saxon 
ancestors — which  optimists  love  to  call  "  the  sacred  Palladium  of 
British  liberty,"  and  pessimists  denounce  as  only  less  unwise  than 
trial  by  battel,  or  even  trial  by  ordeal — has,  during  the  last  half 
century,  received  some  rude  shocks.  The  first  heavy  blow  aimed  at 
it  was  in  the  year  1846,  when  the  creation  of  our  modern  County 
Courts  afforded  to  suitors  an  opportunity  of  determining  for  them- 
selves whether  their  disputes  should  be  settled  by  a  single  judge,  or 
by  the  unanimous  verdict  of  five  jurors.  An  overwhelming  majority 
in  favour  of  the  judge  was  the  verdict  pronounced  by  those  parties, 
who  were  assuredly  most  interested  in  arriving  at  a  sensible  con- 
clusion.' Some  years,  however,  elapsed  before  the  public  became 
acquainted,  through  the  medium  of  the  Annual  Parliamentary 
Returns,  with  these  startling  statistics.  The  seed  was  indeed  sown, 
but  much  fell  by  the  way- side,  or  in  stony  places,  or  among  thorns, 
and  it  was  only  a  small  portion  of  the  whole  which  was  allowed  to 
fructify.  Still,  by  slow  but  sure  degrees,  doubts  respecting  the 
efificacy  of  "  our  inviolate  bulwark  "  were  bruited  about,  and  those 
who  had  ears  to  hear  heard  the  confused  rumour  of  approaching 
change.  The  Common  Law  Commissioners  in  1853^  set  forth 
very  fairly  the  merits  and  demerits  of   trial  by  jury,  and,  in  so 

^  In  the  County  Court  Eeturn,  published  in  June,  1882,  the  following 
figures  appear: — "Actions  determined  with  a  jury,  981;  Avithout  a  jury, 
631,647."  No  doubt  a  large  number  of  the  cases  tried  by  the  judge  alone 
were  for  sums  under  5?.,  and  in  these  cases  a  jury  could  not  be  summoned 
without  leave;  biit  say  that  three-fourths  of  the  claims  were  of  that  character, 
(this  being  a  liberal  estimate),  and  the  fact  still  remains  that  a  jury  was  only 
called  in  one  case  out  of  150,  in  which  it  might  have  been  demanded  at 
the  instance  of  either  litigant.  The  additional  cost  of  a  jury  is,  in  the 
county  courts,   only  5s.  '^  Second  Report,  pp.  3 — 6. 

(2895) 


30  TRIAL  BY  JURY  IN  CRIMINAL  AND  IN  CIVIL  CASES.     [PART  I. 

doing,  prepared  men's  minds  for  the  wider  adoption  of  the  County- 
Court  mode  of  procedure. 


§  21b.  It  is  not  here  intended  to  enumerate,  in  historial  sequence 
the  tentative  changes  that  have  been  introduced  with  the  above 
view;'  but  it  will  suffice  to  point  out  shortly  at  what  stage  they 
have  at  present  arrived.  And  first,  it  must  be  borne  in  mind,  that 
hitherto  no  attempt  has  been  made  to  shake  the  nation's  faith  in 
trial  by  jury,  as  the  best  institution  ever  devised  by  the  wit  of  man 
for  protecting  innocence  when  unjustly  charged  with  the  commis- 
sion of  crime.  In  criminal  cases  the  party  accused,  whether  by 
indictment  or  information,  has  still,  as  in  the  days  of  King  John, 
the  inalienable  right  to  be  tried  "  per  legale  judicium  parium 
suorum;"  and  may  the  rash  hand  of  Innovation  never  presume  to 
touch  that  revered  fabric,  except  so  far  as  may  tend  to  strengthen 
its  foundations,  and  to  enlarge  its  efficacy.  In  dealing  with  civil 
causes,  however,  the  case  is  widely  different;  and  here,  it  is  not 
improbable,  that  we  have  scarcely  as  yet  reached  the  limits  of 
change,  which  the  progress  of  law  reform  will  force  the  country  to 
adopt. 


§  21c.  The  present  law  on  this  subject,  as  it  applies  to  civil 
actions,  and  is  recognised  in  the  High  Coxirt  of  Justice,  will  be 
found — if  careful  search  be  made  for  it — in  Order  XXXVI.  of  the 
Kules  of  1883. 

The  Rules  run  thus  : — 

"  2.  In  actions  of  slander,  libel,  false  imprisonment,  malicious 
prosecution,  seduction,  or  breach  of  promise  of  marriage,  the 
plaintiff  may,  in  his  notice  of  trial  to  be  given  as  hereinafter  pro- 
vided,^ and  the  defendant  may,  upon  giving  notice  within  four  days 
from  the  time  of  the  service  of  notice  of  trial  or  within  such 
extended  time  as  the  court  or  a  judge  may  allow,  or  in  the  notice 
of  trial  to  be  given  by  him  as  hereinafter  provided,^  signify  his 

1  See  17  &  IS  v.,  c.  125,  ?  1;  38  &  39  V.,  c.  77,  ?  22;  Rules  of  Sup.  Ct, 
1875,  OrJ.  xxxvi.  rr.  2,  3,  26,  27;  19  &  20  V.,  c.  102,  §  4,  Ir. ;  13  &  14  V., 
c.  36,  §?  46 — 48,  Sc.  ^  R.  11  of  same  Order. 

3  R.  12. 

(2896) 


CHAP  III.  J  TRIAL  BY  JURY — OR  BY  JUDGE  ALONE.  31 

desire  to  bave  the  issues  of  fact  tried  by  a  judge  with  a  jury,  and 
thereupon  the  same  shall  be  so  tried. 

"  3.  Causes  or  matters  assigned  by  the  principal  Act'  to  the 
Chancery  Division  shall  be  tried  by  a  judge  without  a  jury,  unless 
the  court  or  a  judge  shall  otherwise  order.  (  Cardinall  v.  Cardinall, 
L.  R.,  25  Ch.  D.  772,  where  held  by  Pearson,  J.,  that  this  Order 
should  not  be  made,  unless  the  case  involves  a  simple  issue  of  fact, 
and  that  it  will  not  suffice  to  show  that  the  action  could  be  tried 
more  quickly  at  the  assizes.     S.  C.  53  L.  J.,  Ch.  63G. ) 

"  4.  The  court  or  a  judge  may,  if  it  shall  appear  desirable,  direct 
a  trial  without  a  jury  of  any  question  or  issue  of  fact,  or  partly  of 
fact  and  partly  of  law,  arising  in  any  cause  or  matter  which  pre- 
viously to  the  passing  of  the  principal  Act,^  could,  without  any 
consent  of  parties,  have  been  tried  without  a  jury  ^ 

"  5.  The  court  or  a  judge  may  direct  the  trial  without  a  jury  of 
any  cause,  matter  or  issue  requiring  any  prolonged  examination  of 
documents  or  accounts,  or  any  scientific  or  local  investigation, 
which  cannot  in  their  or  his  opinion  conveniently  be  made  with 
a  jiuy. 

"6.  In  any  other  cause  or  matter,  upon  the  application  of  any 
party  thereto  for  a  trial  with  a  jury  of  the  cause  or  matter  or  any 
issue  of  fact,  an  order  shall  be  made  for  a  trial  with  a  jury. 

"7.  (a.)  In  every  cause  or  matter,  unless  under  the  provisions 
of  Rule  6  of  this  Order,  a  trial  with   a  jury  is  ordered,  or  under 

^  36  &  37  v.,  c.  GG,  'i  34,  gives  the  following  list.  All  causes  and  matters 
in  respect  to  which  any  Act  has  given  exclusive  jurisdiction  to  the  Court  of 
Chancery,  or  to  any  judge  of  that  court,  e.  ff.,  matters  relating  to  lunatics,  or 
charities ;  and  next, 

"  All  causes  and  matters  for  any  of  the  following  purposes  : — 
The  administration  of  the  estates  of  deceased  persons  ; 
The  dissolution  of  jiartnerships,  or  the  taking  of  partnership  or  other 

accounts  ; 
The  I'edemption  or  foreclosure  of  mortgages  ; 
The  raising  of  portions,  or  other  charges  on  land  ; 
The  sale  and   distribution  of  the  proceeds  of  property  subject  to  any 

lien  or  charge  ; 
The  execution  of  trusts,  charitable  or  private  ; 
The   rectification,    or   setting  aside,   or   cancellation   of  deeds  or  other 

written  instruments  ; 
The  specific  performance  of  contracts  between  vendors  and  purchasers  of 

real  estates,  including  contracts  for  leases  ; 
The  partition  or  sale  of  real  estates  ; 

The  wardship  of  infants,  and  the  care  of  infants'  estates." 

*  5th  Aug.,  1873. 

^  E.  g.,  '■  where  matter  in  dispute  consists  wholly  or  in  part  of  matters  of 
mere  account,  which  cannot  conveniently  be  tried  in  the  ordinary  way"  ;  17 
&  18  v.,  c.  125,  I  3. 

(2897) 


32  TRIAL  BY  JURY — OR  BY  JUDGE  ALOXE.  [PART.  I. 

Rule  2  of  this  Order  either  party  has  signified  a  desire  to  have  a 
trial  with  a  jury,  the  mode  of  trial  shall  be  by  a  judge  without  a 
jury  ;  provided  that  in  any  snch  case  the  court  or  a  judge  may  at 
any  time  order  any  cause,  matter,  or  issue  to  be  tried  by  a  judge 
with  a  jury,  or  by  a  judge  sitting  with  assessors,  or  by  an  official 
referee  or  special  referee  with  or  without  assessors  : 

"  (6.)  The  plaintiff  in  any  cause  or  matter  in  whichhe  is  entitled 
to  a  jury  may  have  the  issues  tried  by  a  special  jury,  upon  giving 
notice  in  writing  to  that  effect  to  the  defendant  at  the  time  when 
he  gives  notice  of  trial  : 

"  (c. )  The  defendant,  in  any  cause  or  matter  in  which  he  is 
entitled  to  a  jury,  may  have  the  issues  tried  by  a  special  jury,  on 
giving  notice  in  writing  to  that  effect  at  any  time  after  the  close 
of  the  pleadings  or  settlement  of  the  issues  and  before  notice 
of  trial,  or  if  notice  of  trial  has  been  given,  then  not  less  than 
six  clear  days  before  the  day  for  which  notice  of  trial  has  been 
given  : 

"  (d. )  Provided  that  a  judge  may  at  any  time  make  an  order  for  a 
special  jury  upon  such  terms,  if  any,  as  to  costs  and  otherwise  as 
may  be  just. 

-  "  8.  Subject  to  the  provisions  of  the  preceding  Rules  of  this 
Order,  the  court  or  a  judge  may,  in  any  cause  or  matter,  at  any 
time  or  from  time  to  time,  order  that  different  questions  of  fact 
arising  therein  be  tried  by  different  modes  of  trial,  or  that  one  or 
more  questions  of  fact  be  tried  before  the  others,  and  may  appoint 
the  places  for  such  trials,  and  in  all  cases  may  order  that  one  or 
more  issues  of  fact  be  tried  before  any  other  or  others. 

"  9.  Every  trial  of  any  question  or  issue  of  fact  with  a  jury  shall 
be  by  a  single  judge,  unless  such  trial  be  specially  ordered  to  be  by 
two  or  more  judges. 

"  10.  Nothing  in  this  Order  shall  affect  any  proceedings  under 
any  of  the  provisions  of  the  Common  Law  Procedure  Acts  relating 
to  arbitration." 


§  21d.  On  a  critical  examination  of  these  Rules, — which  it  musjb 
be  admitted  have  been  framed  by  a  draughtsman  who  had  no  clear 
idea  of  what  he  was  undertaking, — it  will  be  seen,  1st,  that  in  most 
cases  coming  before  the  Chancery  Division,  the  litigants  have  no 

(2898) 


CHAP.  III.]  HOW  DIVORCE  CASES  ARE  TRIED.  33 

longer  any  power  to  demand  the  attendance  of  jurors,  but  the  issues 
will  be  tried  without  a  jury,  unless  the  court  or  a  judge  otherwise 
orders  ;  and  next,  that  actions  brought  and  other  matters'  pending 
in  the  Common  Law  Division  must  now  be  tried  by  the  judge 
sitting  alone,  unless  one  or  other  of  the  parties  has  signified  his 
desire,  either  by  notice  to  his  opponent  in  some  particular  cases,^ 
or  by  application  to  the  court  in  others,^  that  a  jury  should  be 
summoned ;  or  unless  a  special  order  has  been  given  by  the  court 
or  a  judge,  that  the  matter  should  be  tried  "by  a  judge  with  a  jury, 
or  by  a  judge  sitting  with  assessors,  or  by  an  official  referee,  or 
special  referee,  with  or  without  assessors."*  In  a  few  instances 
referred  to  in  Rules  4  and  5  the  court  or  a  judge  is  empowered  to 
exclude  the  intervention  of  a  jury,  even  though  both  litigants  are 
desirious  of  adopting  that  mode  of  trial. 

§  21e.  As  the  Rules  just  cited, — besides  having  no  effect  either  in 
criminal  proceedings,  or  in  proceedings  on  the  Crown  or  Revenue 
side  of  the  Queen's  Bench  Division, — are  also  inapplicable  "  in  pro- 
ceedings for  divorce  or  other  matrimonial  causes,"^  it  will  here  be 
convenient  to  state,  that,  by  virtue  of  a  Rule  made  in  July,  1880,^ 
for  divorce  and  matrimonial  causes,  if  damages  be  not  claimed,  the 
cause  is  heard  by  oral  evidence  before  the  court  without  a  jury,  and 
if  damages  be  claimed,  the  cause  is  tried  before  the  court  with  a 
common  jury;  but  in  either  case  any  party  may  apply  by  summons 
for  a  direction  that  the  cause  be  heard  or  tried  in  a  different, 
manner. 


§  22.  With  respect  to  trial  by  jury,  Lord  Hardwicke  has  ^  21 
observed, — and  all  reflecting  men  will  agree  in  the  observation, — • 
that  "it  is  of  the  greatest  importance  to  the  law  of  England,  and 
to  the  subject,  that  the  powers  of  the  judge  and  jury  be  kept 
distinct ;"  yet,  important  as  this  object  undoubtedly  is,  it  is  one 
which,  even  at  the  present  day,  is  not  very  perfectly  eftected.     The 


'  See  E.  7  (a),  cited  ante,  p.  31.  Thus  an  interpleader  may  now  be  tried 
without  a  jury  in  the  Sup.  Ct.,  notwithstanding  Hamlyn  v.  Betteley,  50  L.  J., 
Q.  B.  1.  2  jj  2.  3  E.  6.  ■*  R  7  (a). 

^  Ord.  Ixviii.,  r.  1. 

*  Rules  in  Div.  and  Mat.  Causes,  R.  205. 

3   LAW  OF  EVID.— V.  I.  (2899) 


34  RESPECTIVE  DUTIES  OF  JUDGE  AND  JURY.  [PAKT  I. 

general  principle,  that  the  judge  must  determine  the  law,  and  the 
jury  the  fact,  is  not,  and  cannot  be  disputed ;'  but  in  the  applica- 

*  In  R.  r.  The  Dean  of  St.  Asaph,  Ld.  Mansfield  declared,  "  that  the 
fundamental  definition  of  trial  by  jury  depended  upon  the  universal  maxim, 
ad  qua.>stionem  juris  non  respondent  juratores  ;  ad  qutestionem  facti  non 
respondent  judices;"  and  his  lordship  added — "Where  a  question  can  be 
proved  by  the  form  of  pleading,  the  distinction  is  j^reserved  upon  the  face 
of  the  record,  and  the  jury  cannot  encroach  upon  the  jurisdiction  of  the 
court  ;  when,  by  the  form  of  pleading,  the  two  questions  are  blended 
together,  and  cannot  be  separated  upon  the  face  of  the  record,  the  distinction 
is  preserved  by  the  honesty  of  the  jury.  The  constitution  trusts  that,  under 
the  direction  of  a  judge,  they  will  not  usurp  a  jurisdiction  which  is  not  in 
their  province.  They  do  not  know,  and  are  not  presumed  to  know,  the  law : 
they  are   not  sworn  to  decide  the  law ;  they  are  not  required  to  decide  the 

law It  is  the  duty  of  the  judge,  in  all  cases  of  general  justice, 

to  tell  the  jury  how  to  do  right,  though  they  have  it  in  their  power  to  do 
wrong,  which  is  a  matter  entirely  between  God  and  their  own  consciences." 
21  How.  St.  Tr.  10.39,  1040.  So,  in  an  elaborate  essay  on  this  subject,  pub- 
lished by  Mr.  Hargrave,  as  a  note  to  1  Co.  Litt.  155  b.,  the  learned  author 
states  the  result  to  be,  "that  the  iinmediate  and  direct  right  of  deciding  upon 
questions  of  law  is  intrusted  to  the  judges ;  that  in  a  jury  it  is  only 
incidental;  that  in  the  exercise  of  this  incidental  right,  the  latter  are  not 
only  placed  under  the  superintendence  of  the  former,  but  are  in  some  degree 
controllable  by  them  ;  and,  therefore,  that  in  all  points  of  law  arising  on  a 
trial,  juries  ought  to  show  the  most  respectful  deference  to  the  advice  and 
recommendation  of  judges."  In  America,  the  same  principles  have  been 
expounded,  in  forcible  language,  by  Mr.  Justice  Story.  •'  The  learned  counsel 
for  the  prisoner,"  said  he,  "contends  that  in  criminal  cases,  and  especially  in 
capital  cases,  the  jury  are  the  judges  of  the  law,  as  Avell  as  of  the  fact.  My 
opinion  is,  that  the  jury  are  no  more  judges  of  the  law  in  a  capital  or  other 
criminal  case,  upon  the  plea  of  not  guilty,  than  they  are  in  etery  civil  case, 
tried  upon  the  general  issue.  In  each  of  these  cases,  their  verdict,  Avhen 
general,  is  necessarily  compounded  of  law  and  of  fact,  and  includes  both. 
In  each,  t'aey  must  necessarily  determine  the  law,  as  well  as  the  fact. 
In  each,  they  have  the  physical  power  to  disregard  the  law,  as  laid  down  to 
them  by  the  couit.  But  I  deny  that,  in  any  case,  civil  or  criminal,  they 
have  the  moral  right  to  decide  the  law  accoi'ding  to  their  own  notions  or 
pleasure.  On  the  contrary,  I  hold  it  the  most  sacred  constitutional  right 
of  every  party  accused  of  a  crime,  that  the  jury  .should  respond  as  to  the 
facts,  and  the  court  as  to  the  law.  It  is  the  duty  of  the  court  to  instruct 
the  jury  as  to  the  law;  and  it  is  the  duty  of  the  jury  to  i'ollow  the  law,  as 
it  is  laid  down  by  the  court.  This  is  the  right  of  every  citizen,  and  it  is  his 
only  protection.  If  the  jurj'  Avere  at  liberty  to  settle  the  law  for  themselves, 
the  effect  would  be,  not  only  that  the  law  itself  would  be  most  uncertain, 
from  tlie  different  views  whicli  ditferent  juries  might  take  of  it,  but  in  case 
of  error,  there  would  be  no  remedy  or  redress  l)y  the  injured  party  ;  for  the 
court  would  not  have  any  right  to  review  the  law,  as  it  had  been  settled  by 
the  jury.  Indeed,  it  would  be  almost  imi^racticable  to  ascertain  what  the 
law,  as  settled  by  the  jury,  actually  was.  On  the  contrary,  if  the  Court 
should  err  in  laying  down  the  law  to  the  jnry,  there  is  an  adequate  remedy 
for  the  injured  party  by  a  motion  for  a  new  trial,  or  a  writ  of  error,  as  the 

(2900) 


CHAP.  III.]  DUTIES  OF  JUDGE.  35 

tion  of  this  principle  at  Nisi  Prius,  embarrassing  questions  not 
unfrequently  arise,  from  the  experienced  difficulty  of  defining  with 
clearness  the  obscure  and  shifting  boundaries  of  law  and  fact.  In 
the  present  chapter  it  is  proposed  briefly  to  discuss  this  subject, 
and  to  lay  down  such  general  rules,  as  may  practically  be  of  use  in 
distinguishing  the  relative  duties  of  judges  and  jurors. 

§  23.  The  duty  of  a  judge  presiding  at  a  trial  by  jury  is  four-  2  22 
fold; — First,  he  must  decide  all  questions  respecting  the  admissi- 
bility of  evidence;  secondly,  he  must  instruct  the  jury  in  the  rules 
of  law,  by  which  the  evidence,  when  admitted,  is  to  be  weighed; 
thirdly,  he  must  determine,  as  a  legal  question,  whether  there  be 
any  evidence  fit  to  be  submitted  to  the  jury  for  their  consideration; 
and  lastly,  he  must  explain  and  enforce  those  general  principles  of 
law,  that  are  applicable  to  the  point  at  issue.'  In  discharging  the 
first  duty,  it  frequently  happens  that  the  admissibility  of  a  witness 
or  an  instrument  is  found  to  depend  on  a  disputed  fact,  in  which 
case  all  the  evidence  adduced  both  to  prove  and  disprove  that  fact 
must  be  received  by  the  judge,  and  adjudicated  on  by  him  alone.^ 
Thus,  for  example, — if  the  question  be  whether  a  confession  should 
be  excluded  on  account  of  some  previous  threat  or  promise,  the 
judge  must  decide,  first,  whether  the  threat  or  promise  was  really 

niiture  of  the  jurisdiction  of  the  ijarticuhir  court  may  require.  Every  person 
accused  as  a  criminal  has  a  right  to  be  tried  according  to  the  law  of  the  land, 
the  fixed  laAV  of  the  land;  and  not  by  the  law  as  a  jury  may  understand  it, 
or  choose,  from  wantonness,  or  ignorance,  or  accidental  mistake,  to  interpret 
it.  If  I  thought  that  a  jury  were  the  proper  judges  of  the  law  in  criminal 
cases,  I  should  hold  it  my  duty  to  abstain  from  the  responsibility  of  stating 
the  law  to  them  upon  any  .such  trial.  But  believing,  as  I  do,  that  every 
citizen  has  a  right  to  be  tried  by  the  law,  and  according  to  the  laAv, — that  it 
is  his  privilege  and  truest  sliield  against  oppression  and  wrong, — I  feel  it  my 
duty  to  state  my  views  fully  and  openly  on  the  present  occasion."  U.  S.  v. 
Battiste,  2  Sumn.  243.  See  further,  on  this  interesting  subject,  2  Wynne's 
Eunomus;  Bushell's  case,  6  How.  St.  Tr.  999,  1008,  1013,  1014;  Vaugh. 
13.-,,  S.  C;  Franklin's  case,  17  How.  St.  Tr.  625;  and  R.  v.  Woodfall,  5 
Burr.  2GG1. 

'  Among  the  questions  propounded  by  the  Irish  Parliament  to  the  judges 
of  that  country  in  1641,  was  one,  "whether  the  judge  or  jurors  ought  to  be 
judge  of  the  matters  of  Axct,"  to  which  the  judges  replied,  that,  "although 
the  jurors  be  the  sole  judges  of  matter  of  fact,  yet  the  judges  of  the  court 
are  judges  of  the  validity  of  the  evidence,  and  of  the  matters  of  law  arifiinri  out 
of  the  same,  w'herein  the  jury  ought  to  be  guided  by  them."  2  Nalson's 
Coll.  of  State  Pap.  o75,  582,  Lond.  1683. 

^  Bartlett  v.  Smith,  11  M.  &  W.  486. 

(2901) 


36  DUTIES  OF  JUDGE.  [pART  I. 

made;  and,  secondly,  "whether,  if  made,  it  was  sufficient  in  law  to 
warrant  the  exclusion  of  the  evidence.'  So,  if  a  dying  delaration 
be  tendered  in  evidence,  and  its  admissibility  rest  upon  the  fact 
that  the  deceased  believed,  when  he  made  it,  that  he  was  on  the 
point  of  death,  the  question  whether  this  fact  be  satisfactorily 
proved  must  be  determined  by  the  judge.^  So,  where  the  receipt 
in  evidence  of  a  deposition  depends  on  the  inability  of  the  deponent 
to  attend  the  trial,  the  bickness  of  the  witness  or  other  special 
cause  disabling  him  from  attendance  must  be  proved  to  the  satis- 
faction of  the  judge.^  So,  the  judge  alone  must  decide,  whether 
the  declarant  in  a  question  of  pedigree  has  been  proved  to  be  a 
deceased  member  of  the  family;  and  it  makes  no  difference  in 
applying  this  rule,  that  the  relationship  of  the  declarant  happens  to 
be  the  very  question  at  issue  in  the  cause.*  So,  if  proof  be  offered 
of  the  signature  of  an  attesting  witness,  and  the  admissibility  of 
this  evidence  turns  on  the  fact,  whether  or  not  the  witness  has 
absented  himself  from  the  trial  by  collusion  with  the  opposite 
party,  the  judge  must  decide  on  the  existence  of  this  fact.^  In  like 
manner,  if  the  question  be  whether  a  document  has  been  duly 
executed,  or  stamped;^  or  whether  it  comes  from  the  right  custody;^ 
or  whether  sufficient  search  has  been  made  for  it  to  admit  secondary 
evidence  of  its  contents;*  or  whether  notice  to  produce  it  has  been 
duly  served;  ®  or  whether,  in  the  event  of  its  being  produced  under 
notice,  it  be  the  original  paper  required; '"  or  whether  it  is  protected 

'  See  1  Stark.  R.  523,  n.  b. 

^  So  resolved  by  all  the  judges,  in  two  cases  cited  by  Parke,  B.,  in 
Bartlett  v.  Smith,  11  M.  &  W.  486;  and  in  one  case  cited  by  Ld.  Ellen- 
borough,  in  R.  V.  Hucks,  1  Stark.  R.  523.  These  cases  virtually  overrule  R.  v. 
Woodcock,  1  Lea.  504,  where  the  question  was  left  to  the  jury  by  Eyre,  C.  B. 

=>  D.  of  Beaufort  v.  Crawshay,  1  Law  Rep.,  C.  P.  699;  35  L.  J.,  C.  P.  342, 
«&  1  H.  &  R.  638,  S.  C. 

*  Doe  V.  Davies,  10  Q.  B.  314.  See  Hitchins  v.  Eardley,  2  Law  Rep.,  P.  & 
D.  248;  40  L.  J.,  Pr.  &  Mat.  70,  S.  C. 

»  Egan  V.  Larkin,  1  Arm.,  M.    &  O.  403,  per  Brady,  C.  B. 

«  Bartlett  v.  Smith,  11  M.  &  W.  483;  Dun.sford  v.  Curlewis,  1  Fo.st.  &  Fin. 
702,  per  Hill,  J.  See  Stowe  v.  Querner,  5  Law  Rep.,  Ex.  155;  39  L.  J., 
Ex.  60,  S.  C. 

'  Bp.  of  Meath  v.  M.  of  Winchester,  3  Bing.  N.  C.  198;  Doe  v.  Keeling, 
11  Q.  B.  889,  per  Ld.  Denman.  »  11  M.  &  W.  486,  per  Alderson,  B. 

»  Harvey  v.  Mitchell,  2  M.  &  Rob.  366,  per  Parke,  B. 

'"  Froude  v.  Hobbs,  1  Fost.  &  Fin.  612,  per  Byles,  J. ;  Boyle  v.  Wiseman, 
11  Ex.  R.  360;  overruling  Jones  v.  Fort.  M.  &  M.  196. 

(2902) 


CHAP.    III.]  DUTIES  OF  JUDGE.  37 

as  being  a  confidential  communication;'  or  if  a  witness  be  objected 
to  on  the  ground  of  unripeness  or  imbecility  of  mind; — in  all  these 
and  the  like  cases  the  preliminary  question  of  admissibility  must, 
in  the  first  instance,  be  exclusively  decided  by  the  judge,  however 
complicated  the  circumstances  may  be,  and  though  it  may  be 
necessary  to  weigh  the  conflicting  testimony  of  numerous  witnesses, 
in  order  to  arrive  at  a  just  conclusion. 


§  24  So,  where  evidence  is  offered  of  acts  done  in  places  other  |  22 
than  the  place  in  dispute,  it  is  for  the  judge  to  decide,  in  the  first 
instance,  whether  there  is  such  a  unity  of  character  in  these  dif- 
ferent localities  as  to  render  evidence  aiSecting  the  one  admissible 
with  reference  to  the  other,  and  he  will  be  further  called  upon  to 
pronounce  whether  the  acts  relied  on  amount  to  evidence  of  owner- 
ship.^ Where  witnesses  were  called  to  prove  a  general  usage  in 
trade,  the  judge,  thinking  that  their  testimony  amounted  to  no 
more  than  evidence  of  opinion,  withdrew  it  from  the  consideration 
of  the  jury,  and  the  court  supported  his  ruling.^  It  was  then  laid 
down,  as  a  distinct  principle,  that  where  the  evidence  was  by  law 
admissible  for  the  determination  of  the  point  raised,  the  judge  was 
bound  to  lay  it  before  the  jury;  but  whether  the  evidence  was  ad- 
missible or  not,  was  a  matter  for  the  decision  of  the  judge  alone. 
In  all  these  cases,  however,  after  the  evidence  has  been  finally 
admitted,  its  credibility  and  weight  are  entirely  questions  for  the 
jury,  who  are  at  liberty  to  consider  all  the  circumstances  of  the 
case,  including  those  already  proved  before  the  judge,  and  to  give 
the  evidence  such  credit  only  as,  upon  the  whole,  they  may  think  it 
deserves.*  The  judge  merely  decides  whether  there  is,  prima  facie, 
any  reason  for  presenting  it  at  all  to  the  jury;  and  his  decision  on 
this  point,  if  erroneous,  may  be  reviewed  by  the  court  above. ^ 

§  25.   Secondly,  it  is  the  duty  of  the  judge  to  point  out  to  the    g  23 


^  Cleave  v.  Jones,  7  Ex.  R.  421. 

'^  Doe  V.  Kemp,  7  Bing.  336,  per  Bosanquet,  J. 

=*  Lewis  V.  Marshall,  7  M.  &  Gr.  743,  744. 

*  Welstead  v.  Levy,  1  M.  &  Rob.   139,  per  Parke,   J.;  Doe  v.  Davies,  10  Q. 
B.  324,  per  Ld.  Denman ;  Ross  v.  Gould ,  3  Greenl.  204. 

*  Cleave  v.  Jones,  7  Ex.  R.  421. 

(2903) 


38  DUTIES  OF  JUDGE,  [PABT   I. 

jury  any  rule  of  law,  which  either  renders  evidence  unnecessary,  or 
gives  peculiar  weight  to  any  particular  species  of  evidence,  or  de- 
fines the  manner  in  which  a  certain  fact  must  be  proved.  Thus, 
he  should  distinctly  explain  the  nature  of  any  presumptions,  which 
may  apply  to  the  point  at  issue,  distinguishing  such  as  are  conclu- 
sive from  those  which  are  liable  to  be  rebutted  by  counter 
evidence;  and  again,  dividing  this  latter  class  into  those  presump- 
tions upon  which  the  jury  are  bound  to  act,  in  the  absence  of 
conflicting  testimony,  and  those  upon  which  it  is  expedient,  or 
allowable,  to  rely.  So,  if  by  the  common  or  statute  law  any  docu- 
ment, when  proved,  becomes  conclusive  evidence  of  the  facts  stated 
therein,  it  is  the  province  of  the  judge  to  point  out  to  the  jury  that 
the  existence  of  such  facts  cannot  be  disputed  or  denied,  and  that 
the  only  question  for  their  deliberation  is,  whether  or  not  the 
document  be  duly  proved.  So,  if  the  uncorroborated  testimony  of 
a  single  witness  be  insufficient  by  law  to  establish  guilt,  as,  for 
instance,  in  charges  of  treason  or  perjury,  the  judge  must  acquaint 
the  jury  with  the  nature  and  extent  of  this  rule;  and  even  where  a 
con%dction  founded  upon  such  testimony  would  be  strictly  legal,  as 
in  the  case  of  an  accomplice  becoming  witness  for  the  Crown,  the 
judge  would  not  properly  discharge  his  duty,  if  he  did  not  warn  the 
jury  against  the  danger  of  placing  implicit  reliance  upon  statements 
coming  from  such  a  suspicious  quarter.  Many  judges,  indeed,  and 
those  of  the  greatest  ability,  have  not  confined  their  observations 
within  these  limits,  but  have  boldly  given  their  opinions  respecting 
the  matters  of  fact;  and  although  this  mode  of  proceeding,  when 
adopted,  as  it  sometimes  has  been,  in  a  supercilious  spirit,  may 
arouse  the  jealous  feelings  of  a  jury,  and  may  excite  them,  in  their 
anxiety  to  prove  their  independence,  to  pronounce  an  unjust  verdict;^ 
yet  it  may  well  be  doubted  whether,  in  the  great  majority  of  instances, 
it  would  not  promote  the  real  interests  of  justice,  if  the  judge  were 
temperately  to  state  to  the  jury  what  opinions  he  had  formed 
respecting  the  merits  of  the  case,  and  the  mode  by  which  he  had 


'  "Few  things  incite  me  more  to  repel  a  doctrine  than  intolerant  attempts 
to  force  it  on  my  understanding."  See  Dr.  Channing's  Work,  vol.  iii.  p.  319. 
Ld.  Bacon,  in  his  advice  to  Hutton,  J.,  says,  "  You  should  be  a  light  to  jurors 
to  open  their  eyes,  but  not  a  guide  to  lead  them  by  their  noses."  Bac.  Works, 
vol.  vii.  p.  271,  ed.  Montagu. 

(2904) 


CHAP,  in.]  DUTIES  OF  JUDGE.      '  '  39 

arrived  at  his  conclusions.  The  jury  would  still  have  the  undis- 
puted power  of  deciding  the  question  as  they  thought  lit;  but  they 
would  have  the  advantage  of  being  advised  by  a  man  no  more  liable 
than  themselves  to  prejudice  or  partiality,  whose  long  experience 
in  courts  of  justice  must  of  necessity  have  rendered  him  far  more 
competent  than  they  can  be  to  unravel  the  tangled  threads  of 
conflicting  testimony.  The  too  common  mode  of  summing  up, — 
"Gentlemen,  if  you  think  so  and  so,  you  will  find  for  the  plaintiff, 
if  you  think  otherwise,  you  will  find  for  the  defendant;  gentlemen, 
the  question  is  for  you," — though  sanctioned  by  the  practice  of 
many  able,  but  somewhat  lazy  judges,  and  though  possibly  in 
accordance  with  the  strict  theory  of  a  trial  by  jury,  is  but  little 
calculated  to  promote  the  attainment  of  truth;  and  in  complicated 
cases  before  a  petty  jury,  is  almost  tantamount,  if  not  to  a  direct 
denial  of  justice,  at  least  to  a  decision  of  the  issue  by  lot. 


§  25a.  Thirdly,  the  judge  must,  at  the  close  of  each  case,  deter- 
mine whether  any  evidence  has  been  given  on  which  the  jury  can 
properly  find  the  question  for  the  party  on  whom  the  onus  of  proof 
lies;  and  if  no  such  evidence  exists,  he  ought  to  withdraw  the 
question  from  the  consideration  of  the  jury,  and  direct,  either  a 
non-suit  to  be  entered  if  the  onus  be  on  the  plaintiff,  or  a  verdict 
to  be  found  if  the  onus  be  on  the  defendant.^  It  is  not  always  easy 
to  act  upon  this  somewhat  vague  rule,  and  the  matter  will  not  be 
much  simplified  by  substituting  for  the  language  here  employed — 
as  some  learned  judges  have  sought  to  do — other  indefinite 
phraseology  to  convey  the  same  idea.  To  say  that  a  judge  should 
withdraw  the  case  from  the  jury,  unless  there  be  reasonable  evi- 
dence on  which  reasonable  men  could  reasonably  or  fairly  find  a 
verdict,  leaves  the  rule  pretty  much  as  above  stated  ;"  and  in 
practice,  each  judge  must,  and  can  only,  be  guided  by  such  good 
sense  and  discretion  as  he  can  bring  to  bear  upon  each  trial.     Still, 


1  Ryder  r.  Wombwell,  4  Law  Rep.,  Ex.  32;  38  L.  J.,  Ex.  8,  S.  C;  approved 
of  and  adopted  in  Metrop.  Ry.  Co.  v.  Jackson,  L.  R.,  3  App.  Cas.  193,  207; 
and  in  Dubl.  W.  &  W.  Ry.  Co.  v.  Slattery,  L.  R.,  3  App.  Cas.  1155,  per  Ld. 
Hatherley,  p.  1171,  and  per  Ld.  Blackburn,  pp.  1208,  1209. 

^  See  Dublin  W.  &  W.  Ry.  Co.  v.  Slattery,  L.  R.,  3  App.  Cas.  1197,  1198, 
per  Ld.  Coleridge. 

(2905) 


40  DUTIES  OF  JUDGE.  "    [pAET.  I. 

he  will  probably  not  often  go  astray  if  he  determines  in  every 
doubtful  case  to  take  the  opinion  of  the  jury,  and  to  leave  the 
question,  as  to  how  far  he  was  justified  in  thus  acting,  to  be  decided 
thereafter  by  the  coui't.  Thus  much,  however,  may  be  safely  laid 
down  for  the  guidance  of  the  judge,  that,  whenever  there  is  con- 
flicting evidence  on  a  question  of  fact,  he  must  leave  the  considera- 
tion of  it  for  the  decision  of  the  jury,  whatever  his  own  opinion 
may  be  respecting  its  weight.' 


§  26.  Lastly,  the  judge  must  explain  to  the  jury  what  priciples  ^  24 
of  law  are  applicable  to  the  point  in  issue,  and  in  order  to  enable 
him  to  do  so  correctly,  he  must  distinguish  questions  of  law  from 
questions  of  fact.  This,  in  ordinary  cases,  is  no  difficult  task. 
Thus,  for  instance,  on  a  charge  of  larceny,  the  judge  lays  down,  as 
a  general  proposition  of  law,  that  all  persons  who  take  and  remove 
the  personal  chattels  of  another  without  his  consent,,  and  with  a 
felonious  intent,  are  guilty  of  that  crime;  and  then,  according  to 
the  circumstances  of  the  case,  he  explains,  with  more  or  less  par- 
ticularity, what  constitues  a  taking,  removing,  &c.  These,  ob- 
viously, are  questions  of  law,  and  together  form  the  major  premiss 
of  the  syllogism.  The  jury  next  decide  whether  the  evidence 
proves  that  the  goods  have  been  taken  and  removed  in  such  a 
manner,  and  with  such  an  intent,  as  the  judge  has  previously  shown 
will  amount  to  larceny.  These  are  questions  of  fact,  and  together 
form  the  minor  premiss.  Lastly  comes  the  conclusion  of  guilt  or 
innocence,  which  may  either  be  drawn  by  the  jury  applying  to  the 
facts  which  they  find,  the  rules  of  law  as  interpreted  by  the  judge; 
or,  in  the  event  of  their  considering  this  task  too  difficult  for  them, 
they  are  at  liberty  to  find  the  facts  specially,  but  not  the  mere  evi- 
dence on  which  the  facts  are  founded,^  leaving  the  court  to  apply 
the  law  to  such  facts,  and  consequently  to  pronounce  the  final 
decision.     But  simple  as  this  process  appears  to  be,  the  line  between 


^  Dublin  W.  &  W.  Ey.  Co.  r.  Slattery,  L.  R.,  3  App.  Cas.  1155,  per 
Dom.  Troc.  Ir.  See  also  Metrop.  Ry.  Co.  v.  Jackson,  L.  R.,  3  App.  Cas.  193, 
197; and  47  L.  J.,  C.  P.,  303,  305,  S.  C.  in  Dom.  Proc,  cited  post,  ?  37,  n.*. 

2  Hubbard  v.  Johnstone,  3  Taunt.  209,  per  "Wood,  B. ;  Harwood  v.  Good- 
right,  1  Cowp.  91,  92,  per  Ld.  Mansfield;  Mires  D.Solebay  2  Mod.  244,  245; 
1  St.  Ev.  511,  512. 

(2906) 


CHAP  III.]  MIXED  CASES — PROBABLE  CAUSE  41 

law  and  fact  has  been  very  indistinctly  drawn  in  a  certain  class  of 
eases,  and  in  these  cases,  therefore,  the  respective  duties  of  the 
judge  and  jury  are  not  yet  clearly  defined.  For  instance,  if  the 
question  be  whether  a  certain  party  had  probable  cause  for  doing  an 
act,  or  whether  he  has  done  an  act  within  a  reasonable  time,  or  with 
due  diligence,  it  is  difficult  to  say  whether  the  definition  of  what 
constitutes  probable  cause,  reasonable  time,  or  due  diligence,  be  for 
the  judge  or  the  jury,  and  specious  arguments  will  not  be  wanting 
in  favour  of  the  claims  of  either  party.  On  the  one  hand,  it  may 
be  said,  that  these  terms  are  as  capable  of  judicial  interpretation 
as  the  words  conversion,  or  asportation,  which  must  clearly  be  ex- 
plained by  the  judge  ;  while,  on  the  other  hand,  it  may  be  urged, 
that  they  seem  rather  addressed  to  the  practical  experience  of 
practical  men,  than  to  the  legal  knowledge  of  the  mere  lawyer ; 
that,  being  terms  of  degree,  their  meaning  is  subject  to  indefinite 
fluctuation,  according  to  the  varying  circumstances  of  each  parti- 
cular case,  and  that  consequently  they  defy  all  attempts  to  compress 
them  within  exact  d  ijriori  definitions.  In  truth,  they  are  neither 
matters  of  fact,  nor  matters  of  law,  exclusively,  but  are  rather 
matters  of  quality  or  opinion,  which,  for  want  of  a  more  appropriate 
name,  have  been  generally  termed  "  mixed  cases."  They  form,  in 
logical  phrase,  the  middle  term,  and  are  alike  common  to  both  the 
premisses,  which  are  respectively  intrusted  to  the  judge  and  jury, 
and  upon  which  the  ultimate  decision  must  proceed.' 

§  27.  Having  said  thus  much  respecting  the  general  nature  of  §  25 
this  class  of  cases,  it  remains  to  be  seen  what  decisions  have  been 
reported  on  the  subject ;  and  although  some  of  these  will  be  found 
to  rest  rather  on  arbitrary  authority  than  on  any  definite  principle 
of  law,  it  is  hoped  that  their  collection  and  partial  classification 
may  be  of  some  service,  the  more  especially  as  precedents  have 
ever  been  considered  in  this  country  as  deservedly  entitled  to 
respect. 

§  28.  First  :  It  is  now  clearly  established, — albeit  the  wisdom  of    i  OQ 
the  rule  has  been  stoutly  disputed,^ — that  the  question  of  probable 


^  See,  on  this  difficult  subject,  12  Law  Mag.  53—74  ;  1  St.  Ev.  512—526. 
"^  Lister  v.  Ferryman,  4  Law  Rep.,  H.  L.  521  ;  39  L.  J.,  Ex.  177,  S.  C.     See 
Hicks  V.  Faulkner,  51  L.  J.,  Q.  B.  268. 

(2907) 


42  PROBABLE  CAUSE.  [pAET  I. 

cause  must  be  decided  exclusively  by  the  judge,  and  that  the  jury 
can  only  be  permitted  to  find  whether  the  facts  alleged  in  support 
of  the  presence  or  absence  of  probability,  and  the  inferences  to  be 
drawn  therefrom,  really  exist/  For  instance,  in  an  action  for  a 
malicious  prosecution,  the  jury,  provided  the  evidence  on  the  sub- 
ject be  conflicting,  may  be  asked  whether  or  not  the  defendant,  at 
the  time  when  he  prosecuted,  kneiv  of  the  existence  of  those  cir- 
cumstances which  tend  to  show  probable  cause,  or  believed  that 
they  amounted  to  the  offence  which  he  charged  ;  and  if  they  nega- 
tive either  of  these  facts,  the  judge  will  decide  as  a  point  of  law, 
that  the  defendant  had  no  probable  cause  for  instituting  the  prose- 
cution.^ This  rule, — ^which  is  based  on  the  assumption  that  judges 
are  far  more  competent  than  juries  to  determine  the  question  how 
far  it  may  have  been  proper  for  a  person  to  have  instituted  a  prose- 
cution,^— is  equally  binding,  however  numerous  and  complicated 
the  facts  and  inferences  may  be  ;  *  for,  although  in  some  cases  it 
would  doubtless  be  attended  with  great  difficulty  to  bring  before  the 
jury  all  the  combinations  of  which  numerous  facts  are  susceptible, 
and  to  place  in  a  distinct  point  of  view  the  application  of  the  rule 
of  law,  according  as  all,  or  some  only  of  the    facts   and  inferences 

1  Michell  V.  Williams,  11  M  &  W.  205  ;  Panton  v.  Williams,  2  Q.  B.  169  ; 
1  G.  &  D.  504,  S.  C.  ;  Hailes  v.  Marks,  30  L.  J.,  Ex.  389  ;  7  H.  &  N.  56,  S.  C.  ; 
Sutton  V.  Johnstone,  1  T.  R.  493,  510,  544,  545,  547,  784 ;  J  Br.  P.  C.  76, 
2nd  ed.,  S.  C,  in  Dom.  Proc.  ;  Mitchell  v.  Jenkins,  5  B.  &  Ad.  594—596; 
Hinton  v.  Heather,  14  M.  &  W.  134,  per  Alderson,  B.  ;  West  v.  Baxendale,  9 
Com.  B.  141. 

^  Turner  v.  Ambler,  10  Q.  B.  252.  The  absence,  however,  of  belief  must 
he  proved  by  the  plaintiff,  and  cannot  be  inferred  from  the  mere  fact  that  the 
defendant  had  made  use  of  the  charge  for  an  unfair  purpose,  id.  See,  also. 
Broad  v.  Ham,  5  Bing.  N.  C.  722  ;  Haddrick  v.  Heslop,  12  Q.  B.  274—277  ; 
Heslopr.  Chapman,  23,  L.  J.,  Q.  B.  49. 

3  Fraser  v.  Hill,  1  Macq.  Sc.  Cas.  H.  of  L.  398,  per  Ld.  Cranworth. 

*  In  Panton  *,'.  Williams,  2  Q.  B.  192,  Tindal,  C.  J.,  observes,  "Upon  this 
bill  of  exceptions  we  take  the  broad  question  between  the  parties  to  be  this : 
whether,  in  a  case  in 'which  the  question  of  reasonable  or  probable  cause 
depends,  not  upon  a  few  simple  iiicts,  but  upon  facts  which  are  numerous  and 
complicated,  and  upon  inferences  to  be  drawn  therefrom,  it  is  the  duty  of  the 
judge  to  inform  the  jury,  that  if  tliey  find  the  fiicts  proved,  and  the  inferences 
to  be  warranted  by  such  facts,  the  same  do  or  do  not  amount  to  reasonable  or 
probable  cause,  so  as  thereby  to  leave  the  question  of  fact  to  the  jury,  and 
the  abstract  question  of  law  to  the  judge.  And  we  are  all  of  opinion  that  it 
is  the  duty  of  the  judge  so  to  do."  See  Rowlands  v.  Samuel,  11  Q.  B.  41,  n.  ; 
Douglas  V.  Corbett,  6  E.  &  B.  514. 

(2908) 


CHAP  III.]  REASONABLE  BELIEF.  43 

from  facts  are  made  oat  to  their  satisfactioD,  yet  the  task  ir  not 
impracticable  ;  and  it  would  obviously  savour  of  gross  inconsistency 
to  hold  that  a  rule,  which  is  undisputed  in  a  simple  case,  should 
not  equally  apply  where  the  facts  were  complicated.'  For  where 
could  the  line  be  drawn,  and  who  should  determine  what  degree  of 
complexity  would  transfer  the  burthen  of  decision  from  the  judge 
to  the  jury?  The  difficulty,  too,  is  more  apparent  than  real,  for  it 
rarely  happens  but  that  some  leading  facts  exist  in  each  case,  w  hich 
present  a  broad  distinction  to  the  view,  without  having  recourse  to 
the  less  important  circumstances  ; "  and  as  the  judge  has  a  right  to 
act  upon  all  the  uncontradicted  facts,  it  is  only  where  some  doubt 
is  thrown  upon  the  credibility  of  the  witnesses,  or  where  some  con- 
tradiction occurs,  or  some  inference  is  attempted  to  be  drawn  from 
some  former  fact  not  distinctly  sworn  to,  that  he  is  called  upon  to 
submit  any  question  to  the  jury.^ 

§  29.  Although  the  rule  is  as  above  stated,  where  in  an  action  §  27 
on  the  case  for  malicious  prosecution  the  question  of  probable 
cause  arises,  it  has  been  held,  both  in  England  and  Ireland,  that 
in  an  action  of  trespass,  the  reasonableness  of  the  belief  or  suspicion, 
upon  which  a  party  acts  in  causing  an  arrest  or  in  detaining 
goods,  is  a  question  which  the  jury  may  be  called  upon  to  decide.* 
Thus,  if  a  magistrate,  on  being  sued  for  false  imprisonment,  were 
to  rely,  under  not  guilty  by  statute,  upon  want  of  notice  of  action 
or  the  like,  the  question  whether  he  believed,  with  some  colour  of 
reason,  and  bona  fide,  that  he  was  acting  in  pursuance  of  his  lawful 
authority,  so  as  to  entitle  him  to  Ihe  protection  of  the  statute, 
would,  in  strictness,  be  for  the  jury  to  determine  under  all  the 
circumstances,  if  the  plaintifi  should  desire  their  opinion  to  be 
taken  on  the  evidence  ;  though  if,  as  is  commonly  the  case,  these 
questions  were  first  submitted  to  the  judge  on  an  application  for  a 
nonsuit,  and  the  plaintiff  did  not  then  desire  them  to  be  left  to  the 


^  Pan  ton  v.  Williams,  2  Q.  B.  194,  195,  per  Tindal,  C.  J.,  pronouncing  the 
judgment  of  the  Ex.  Ch.  *  Id 

^  Michell  V.  Williams,  11  M.  &  W.  216,  217,  per  Alderson,  B. 

*  Wedge  V.  Berkeley,  6  A.  &  E.  G63 ;  1  N.  &  P.  665,  S.  C. ;  Annett  v. 
Osborne,  2  Jebb  &  Sy.  376 ;  Hazeldine  v.  Grove,  3  Q.  B.  997 ;  3  G.  &  D. 
210,  S.  C.  ;  Hughes  v.  Buckland,  15  M.  &  W.  346. 

(2909) 


44  REASONABLE  TIME.  [PARr  I. 

jury,  he  would  be  bound  by  the  decision  of  the  judge,  if  the  court 
should  think  it  warranted  by  the  evidence.' 


§  30.  The  question  of  reasonable  time  is  open  to  more  doubt  §  28 
than  that  of  probable  cause.  With  respect  to  some  subjects, 
indeed,  which  from  their  frequent  recurrence  admit  of  the  adoption 
of  precise  rules  as  to  what  constitutes  reasonable  time,  the  courts, 
for  the  sake  of  commercial  convenience,  have  laid  down  such  rules; 
and  in  these  cases  the  duty  of  the  jury  is  clearly  confined  to  the 
simple  task  of  ascertaining  whether  the  facts  proved  fall  within 
the  rules  or  not.  Thus,  notice  of  dishonour  of  a  bill  of  exchange 
must  be  given  within  a  reasonable  time,  and  this  has  been  held^ 
by  the  judges^  to  mean, — according  as  the  parties  live  in  the  same 
or  in  different  places, — either  that  the  letter  containing  notice 
should  be  so  posted  that  in  the  due  course  of  delivery  it  would 
arrive  on  the  day  following  that  on  which  the  writer  has  received 
intelligence  of  dishonour  ;  *  or  that  such  letter  should  be  posted 
before  the  departure  of  the  mail  on  the  day  following  the  receipt  of 
intelligence  ;  ^  or  if  there  be  no  post  on  that  day,®  or  if  it  start  at 
an  unreasonable  hour  in  the  morning,  '  then  the  writer  shall  have 
an  additional  day.  If,  too,  the  bill  be  presented  through  a  banker, 
one  day  more  is  allowed  for  giving  notice  of  dishonour  than  if  it 
were  presented  by  the  party  himself.^  At  one  time  a  doubt  seems 
to  have  been  entertained  whether,  in  the  event  of  there  being  several 
indorsers  to  a  bill,  the  holder  would  have  a  separate  day  allowed 
him  for  giving  notice  to  each  ;  but  it  is  now  expressly  decided  that 

1  Hazelcline  r.  Grove,  3  Q.  B.  997,  1007  ;  3  G.  &  D.  210,  S.  C.     See  post,  ?  38. 
^  See,  now,  45  &  4G  V.,  c.  61,  |  49,  subs.  12,  which  codifies  the  law  as  stated 
in  the  text. 

3  See  Hirschfiehl  r.  Smith,  1  H.  &  R.  284,  288,  per  Erie,  C.  J. 

*  Stocken  v.  Collin,  7  M.  &  W.  515  ;  Smith  v.  Mullett,  2  Camp.  208,  per 
Ld.  Ellenhorough  ;  Hilton  v.  Fairclough,  id.  633,  per  Lawrence,  J.  ;  Rowe  v. 
Tipper,  13  Com.  B.  256,  per  Maule,  J. 

*  Williams  v.  Smith,  2  B.  &  A.  496.  See  Shelton  v.  Braithwaite,  7  M.  &  W. 
436. 

*  Geill  V.  Jeremy,  M.  &  M.  61,  per  Ld.  Tenterden. 

'  Hawkes  v.  Salter,  4  Bing.  715  ;  1  M.  &  P.  750,  S.  C.  ;  Bray  v.  Hadwen, 
5  M.  &  Sel.  68 ;  Wright  v.  Shawcross,  2  B.  &  A.  501,  n. 

^  Alexander  v.  Burchfield,  7  M.  &  Gr.  1066,  1067,  per  Tindal,  C.  J.  ;  Haynes 
V.  Birks,  3  B.  &  P.  599  ;  Scott  v.  Liflford,  9  East,  347  ;  2  Camp.  246,  S.  C.  ; 
Langdale  v.  Trimmer,  15  East,  291.     See  45  &  46  V.,  c.  61,  ?  49,  subs.  13. 

(2910) 


CHAP.    III.]  REASONABLE  TIME.  45 

he  has  in  general  but  one  day  to  give  notice  to  all  the  parties 
against  whom  he  intends  to  enforce  his  remedy,  though  each  of  the 
indorsers  in  turn  has  his  day/  and  though  the  holder  may  avail 
himself  of  a  notice  duly  given  by  any  other  party  to  the  bill.^ 
Again,  the  holder  of  a  cheque,  or  of  a  bill  or  note  payable  on 
demand,  must,  in  general,  present  the  instrument  for  payment  on  or 
before  the  day  following  that  on  which  it  was  received;^  but  in  these 
cases,  the  term  "  reasonable  time  "  may  sometimes  receive  a  different 
construction,  regard  being  had  to  the  nature  of  the  instrument,  the 
usage  of  trade,  and  the  particular  facts.* 

■  §  31.  This  last  rule  applies,  not  only  as  between  the  parties  to  a  ^28 
cheque,^  but  as  between  banker  and  customer,  unless  circumstances 
exist  from  which  a  contract  or  duty  on  the  part  of  the  banker  to 
present  at  an  earlier,  or  to  defer  presentation  to  a  later  period,  can 
be  inferred.^  But  the  rule  does  not  apply  to  cases  where  the  action 
is  brought  by  the  holder  of  a  banker's  cheque  against  the  drawer, 
unless  during  the  delay  the  fund  has  been  lost,  as  by  the  failure  of 
the  banker.'  When  the  rule  is  applicable,  it  matters  not,  so  far  as 
the  liability  of  the  drawer  in  concerned,  whether  the  instrument  be 
presented  for  payment  by  the  party  himself  or  by  his  banker;  and, 
therefore,  when  an  uncrossed  cheque,  given  to  a  gentleman  on  the 
10th  of  March,  was  paid  into  his  bankers'  on  the  11th,  and  was 
presented  by  them  on  the  12th  to  the  bankers  on  whom  it  was  drawn, 
and  who  had  stopped  payment  early  in  the  morning,  the  court  held 
that  the  payee  could  not  recover  the  amount  of  the  cheque  from 
the  drawer  as  the  presentment  for  payment  had  not  been  made 

^  Eowe  V.  Tipper  13  Com.  B.  249;  Dobree  v.  Eastwood,  3  C.  &  P.  250. 
See,  however,  Gladwell?).  Turner,  39  L.  J.,  Ex.  31;  5  Law  Rep.,  Ex.  59,  S.  C. 

*  Chapman  v.  Keane,  3  A.  &  E.  193;  4  N.  &  M.  607,  S.  C;  Rowe  v.  Tipper, 
13  Com.  B.  256,  per  Jervis,  C.  J. 

^  Rickford  v.  Ridge,  2  Camp.  539;  Boddington  v.  Schlencker,  4  B.  &  Ad. 
762;  Moule  v.  Brown,  4  Bing.  N.  C.  266.  See  Bailey  v.  Bodenham,  16  Com. 
B.,  N.  S.  288;  33  L.  J.,  C.  P.  252,  S.  C. 

^  45  &  46  v.,  c.  61,  U  45,  subs.  2;  74,  subs.  2;  and  86,  subs.  2. 

*  See  Hopkins  v.  Ware,  4  Law  Rep. ,  Ex.  268. 

«  Hare  v.  Henty,  30  L.  J.,  C.  P.  302;  10  Com.  B.,  N.  S.  65,  S.  C.  See 
Prideaux  v.  Criddle,  4  Law  Rep.,  Q.  B.  455;  38  L.  J.,  Q.  B.  232;  10  B.  &  S.  515, 
S.  C. 

'  Robinson  v.  Hawksford,  9  Q.  B.  52;  Serle  v.  Norton,  2  M.  &  Rob.  401, 
per  Ld.  Abinger,  404,  n.  a;  Laws  v.  Rand,  27  L.  J.,  C.  P.  76  ;  3  Com.  B.,  N. 
S.  442,  S.  C.     Here  no  time  less  than  six  years  is  deemed  unreasonable. 

(2911) 


46  REASONABLE  UOURS.  [PAHT   I. 

witbin  a  reasonable  time,  and  the  bankers  at  the  time  of  their 
failure  had  sufficient  funds  of  the  drawer's  to  pay  the  cheque.' 
Had  the  payee  in  this  case  stipulated  that  his  bankers'  names 
should  be  crossed  upon  the  cheque,  or  had  the  drawer  discounted 
his  cheque  in  the  country,  the  result  would  have  been  otherwise, 
for  the  drawer  would  then  have  been  considered  as  agreeing  to  the 
arrangement  that  tha  necessary  course  of  presentment  through  a 
banker  should  be  observed,  and  the  steps  actually  taken  were  clearly 
in  conformity  with  such  course.^ 


§  32.  The  judges  have  also,  with  respect  to  the  presentment  of  g  29 
bills  for  payment,  taken  upon  themselves  to  decide,  as  a  question 
of  law,  what  constitutes  reasonable  hours,  and  have  held  that  if 
an  instrument  be  payable  at  a  banker's,  it  must  be  presented 
within  banking  hours  ;^  if  elsewhere,  at  any  time  when  the  drawer 
may  be  expected  to  be  found  at  his  place  of  residence  or  business, 
though  it  be  as  late  as  eight  or  nine  o'clock  in  the  evening.*  If, 
indeed,  the  banker  appoints  a  person  to  attend  at  the  office  after 
banking  hours  for  the  purpose  of  returning  an  answer  to  a  pre- 
sentment, and  such  person  does  return  an  answer  before  mid- 
night, no  objection  can  be  taken  to  the  unreasonableness  of  the 
hour  when  the  presentment  was  made;^  and  the  same  rule  would 
seem  to  prevail  if  the  bill  be  personally  j^^^sented  to  the  acceptor 
before  twelve  o'clock  at  night  on  the  day  that  it  falls  due.''  So, 
a  demand  or  tender  of  rent  on  the  land  must,  in  order  to  create 
or  avoid  a  forfeiture,  be  made  before  sunset,  this  being  a  rule  of 
convenience  adopted  by  the  law  to  prevent  the  necessity  of  one 
party  waiting  for  the  other  till  midnight.  But  if  the  tenant 
actually  meet  the  lessor,  either  on  or  ofP  the  land,  at  any  time  of 
the  last  day  of  payment,  and   tender  the  rent,  it  will  be  sufficient. 


'  Alexander?'.  Burchfield,   7  M.  &Gr.  1061. 

2  Id.,  lOGG,  1067,  per  Tindal,  C.  J.  See  45  &  46  Y.,  s.  61,  ??  46— 82;  and 
Hey  wood  v.  Pickering,  9  Law  Rep.,  Q.  B.  42S;  43  L.  J.,  Q.  B.  145,  S.  C. 

3  Parker  v.  Gordon,  7  Ea.st,  385;  Elford  v.  Teed,  1  M.  &  Sel.  28. 

*  AVilkins  v.  Jadis,  2  B.  &  Ad.  188;  1  M.  &  Rob.  41,  S.  C. ;  Jameson  v. 
Swinton,  2  Taunt.  224;  Barclay  r.  Bailey,  2  Camp.  527,  per  Ld.  Ellen- 
borough.     5  Garnettr.  Woodcock,  6M.  &  Sel.  44;  1  Stark.  B.  475,  S.  C. 

6  See  6  M.  &  Gr.  624—626  per  Parke,  B. 

(2912) 


CHAP.  III.]  REASONABLE  HOURS.  47 

provided  there  was  time  before  midnight  to  receive  and  count  the 
money  tendered.' 

§  33.  The  law  as  to  delivery  of  goods  within  reasonable  hourb  g  29 
was  much  discussed  in  the  case  of  Startup  v.  Macdonald.^  There 
the  defendant  had  agreed  to  purchase  certain  oil  of  the  plaintiffs,  to 
be  delivered  within  the  last  fourteen  days  of  March,  and  the  action 
was  brought  for  not  accepting  it  according  to  the  contract.  The 
defence  was  that  the  oil  was  tendered  on  the  31st  March  at  nine  at 
night,  which  was  an  unreasonable  hour.  The  jury  found  by  a  special 
verdict  that  the  oil  was  tendered  at  half- past  eight  at  night  on  a 
Saturday;  that  there  was  full  time  for  the  plaintiffs  to  have  de- 
livered, and  for  the  defendant  to  have  examined,  weighed,  and 
received  the  whole  before  Sunday  morning;  but  that  the  time  of 
tendering  was  unreasonably  late.  Upon  this  verdict  the  Court  of 
Common  Pleas  gave  judgment  for  the  defendant;  but  the  judges  of 
the  Exchequer  Chamber  (Lord  Denman  dissentiente)  I'eversed  the 
decision.  Mr.  Justice  Patteson  observed,  "It  may  be  conceded 
that  the  defendant  was  not  bound  to  be  on  his  premises  ready  to 
receive  the  oil  after  the  usual  hours  of  business;  and  if  he  had 
gone  away,  and  the  plaintiffs  had  afterwards  come,  and  been 
unable  to  make  a  personal  tender,  they  must  have  suffered  for 
their  delay;  but  as  the  defendant  did  wait,  and  as  the  tender  teas 
made  in  time  to  complete  the  delivery  within  the  time  specified, 
the  unreasonableness  and  impropriety  of  the  time,  whatever  those 
words  mean,  form  no  answer  to  the  action  for  not  accepting  the 
oil."^  Mr.  Baron  Alderson  used  language  to  the  same  effect,* 
and  thus  laid  down  the  general  rule: — "Wherever,  in  cases  not 
governed  by  peculiar  customs  of  trade,  the  parties  oblige  them- 
selves to  the  performance  of  duties  within  a  certain  number  of 
days,  they  have  until  the  last  minute  of  the  last  day  to  perform 
their  obligation.  The  only  qualification  that  I  am  aware  of  to 
this  rule  is,  that  in  acts  requiring  time  in  order  that  they  may  be 


^  Startup  V.   Macdonald,   6  M.  &  Gr.   619,   620,  per  Patteson,   J.;  622,  per 
Alderson,  B. ;  625,  626,  per  Parke,  B. 

-  6  M.  &  Gr.  5913,  in  Ex.  Ch.,  reversing  the  judgment  of  the  Court  helow, 
as  reported  in  2  M.  &  Gr.  395;  and  in  2  Scott,  N.  R.  485. 

2  6  M.  &  Gr.  620.  *  Id.  621,  622. 

(2913) 


48  REASONABLE  NOTICE  TO  QUIT.  [pART  I. 

completely  perfcrmcd,  the  party  must,  at  all  events,  tender  to  do 
the  act  at  such  period  before  the  end  of  the  last  day,  as,  if  the 
tender  be  accepted,  will  leave  him  sufficient  time  to  complete  bis 
performance  before  the  end  of  that  day.  In  the  case  of  a  mer- 
cantile contract,  however,  the  opposite  party  is  not  bound  to 
wait  for  such  tender  of  performance  beyond  the  usual  hours  of 
mercantile  business,  or  at  any  other  than  the  usual  place  at  which 
the  contract  ought  to  bo  performed.  The  party,  therefore,  who 
does  not  make  his  tender  at  that  usual  place,  or  during  those 
usual  hours,  runs  a  great  risk  of  not  being  able  to  make  it  at  all. 
In  this  case  the  plaintiffs  have  had  the  good  fortune  to  meet  with 
the  defendant,  and  to  make  a  tender  to  him  in  sufficient  time. 
And  I  think,  under  these  circumstance?,  that  the  defendant  was 
bound  to  accept  the  goods,  and  is  liable  in  damages  for  not  accept- 
ing them."  ' 

§  34.  Again,  a  reasonable  notice  to  quit  a  yearly  tenancy  has  for  §  30 
centuries  received  a  legal  construction,  as  meaning  a  six  calendar 
months'  notice,^  to  terminate  at  the  expiration  of  the  current  year:^ 
and  when  the  tenant  holds  different  portions  of  the  premises  from 
different  days,  it  has  been  further  decided,  that  the  notice  refers  to 
the  day  of  entry  on  the  substantial  subject  of  the  holding.*     The 

1  6  M.  &  Gr.  622,  623.  See  also  the  himinous  judgment  of  Parke,  B.,  id. 
623—626. 

^  That  is,  from  one  quarter  day  to  the  next  but  one  following.  The  exact 
number  of  months  or  days  does  not  signify.  Notice  on  20th  March  to  quit 
on  29th  September,  insufficient.  Notice  on  28th  September  to  quit  on  25th 
March,  sufficient.     Morgan  v.  Davies,  L.  E.,  3  C.  P.  D.  260. 

^  Doe  V.  Si)ence,  6  East,  123,  per  Ld.  Ellenborough.  It  is  still  a  moot  point 
in  the  Superior  Courts,  whether,  in  the  absence  of  evidence  of  a  contract  or 
usage,  a  week's  notice  to  quit  is  necessary  to  determine  a  weekly  tenancy.  See, 
and  compare,  .Tones  v.  Mills,  10  Com.  B.,  N.  S.  788;  31  L.  J.,  C.  P.  66,  S.  C; 
Huffell  V.  Armitstead,  7  C.  &  P.  56,  per  Parke,  B. ;  and  Towne  v.  Campbell, 
3  Com.  B.  921.  In  the  County  Courts,  however,  this  question  has  been  settled 
in  the  affirmative  for  the  last  thirty  years.  It  seems,  too,  that  if  the  hiring  be 
monthly,  a  month's  notice  will  be  necessary;  and  if  the  hiring  be  quarterly,  a 
quarter's  notice  will  be  necessary;  Towne  v.  Campbell,  3  Com.  B.  921,  per 
Coltman,  J.  See  also  Kemp  v.  Derrett,  3  Camp.  510,  per  Ld.  Ellenborough; 
Eight  d.  Flower  v.  Darby,  1  T.  E.  162,  per  Ld.  Mansfield;  Bridges  v.  Potts, 
33  L.  J.,  C.  P.  338;  17  Com.  B.,  N.  S.  314,  S.  C. 

*  Doe  V.  Snowdon,  2  W.  Bl.  1224;  Doe  v.  Spence,  6  East,  120;  Doe  v. 
Watkins,  7  East,  551 ;  Doe  v.  Ehodes,  11  M.  &  W.  600.     In  this  last  case  the 

(2914) 


CHAP.  III.]  KEASONABLE  TIME.  49 

Agricultural  Holdings  (England)  Act,  1883,  has,  however,  interfered 
with  this  time  honoured  rule;  and  provided  the  holding  be  either 
agricultural  or  pastoral,  or  both,  or  be  wholly  or  in  part  cultivated 
as  a  market  garden,^  a  year's  notice,  "  expiring  with  a  year  of 
tenancy,"  has  now  become  necessary  in  every  contract,  whether 
made  before  or  after  the  commencement  of  that  Act,  unless  the 
landlord  and  tenant  shall  have  agreed  in  icriting  that  this  enact- 
ment shall  not  apply,  in  which  case  a  six  months'  notice  shall 
continue  to  be  sufficient.^  In  the  case  of  domestic  servants,^ — - 
which  term  has  been  held  to  include  huntsmen,^  and  head-gar- 
dener,*— a  reasonable  notice  to  quit  is  a  calendar  month's  warn- 
ing f  but  it  must  be  borne  in  mind  that  this  rule  is  inapplicable 
to  farm  servants,*^  clerks,  travellers,  governesses,'  housekeepers  in 
large  hotels,^  and  the  like.  So,  the  reasonable  period  during  which 
a  member  of  Parliament  is  entitled  to  freedom  from  arrest  on  a  ca. 
sa.  has,  for  at  least  two  hundred  years,  been  fixed  at  forty  days 
before  and  after  each  session,  the  rule  being  the  same  in  the  case 
of  a  dissolution  as  in  that  of  a  prorogation.^  In  all  these  cases, 
the  question  being  decided  by  a  precise  rule  of  law,  is  entirely 
withdrawn  from  the  consideration  of  the  jury. 

§  35.  Again,  the  reasonable  time  for  which  a  party  charged  with    ^  30 
an  indictable  offence  may,  in  England  or  Ireland,  be  committed  for  re- 
examination is  now, — with  one  exception  recognised  in  England,"* — 

questions  raised,  but  not  decided,  was  whether,  where  a  tenant  held  a  farm  from 
year  to  year, — the  land  from  2  Feb.,  the  house  from  1  May, — a  notice  to 
quit  the  whole,  given  half  a  year  before  2  Feb.,  was  sufficient  to  entitle  the 
landlord  to  recover  the  whole  in  ejectment,  on  a  demise  dated  3  Feb.  The 
Inclination  of  Ld.  Abinger's  opinion  appears  to  have  been  in  support  of  the 
affimative. 

M6  &  47  v.,  c.  61,  ?  54.  See  also  39  &  40  V.,  c.  63,  Ir.,  as  to  the  cor- 
responding law  of  Ireland.  M6  &  47  V.,  c.  61,  §  33. 

3  Nicoll  r.  Greaves,  33  L.  J.,  C.  P.  259;  17t;om.  E.,  N.  S.  27,  S.  C. 

*  Nowlan  v.  Ablett,  2  C.  M.  &  E.  54. 

5  Nowlan  v.  Ablett,  2  C.  M.  &  E.  54  ;  Fawcett  v.  Cash,  5  B.  &  Ad.  904  ; 
3  N.  &  M.  177,  S.  C.    ■  «  Lilley  v.  Elwin,  11  Q.  B.  742. 

'  Todd  V.  Kerrick,  8  Ex.  E.  151.     See  post,  ^  177. 

«  Lawler  v.  Linden,  L  E.,  10  C.  L.  188. 

'  Goudy  V.  Duncombe,  1  Ex.  E.  430  ;  In  re  Anglo-French  Co-operat.  Soc, 
L.  E.,  14  Ch.  D.  533. 

^°  This  exception  prevails  when  a  court  of  summary  jurisdiction  is  em- 
powered to  deal  summarily  with  an  indictable  offence,  in  which  case  the 
4  LAW  OF  EVID. — V.  I.  (2915) 


50  RE.iSONABLE  TIME.  [PAET  I, 

limited  by  statute  to  eight  clear  days,  where  the  accused  is  re- 
manded by  warrant,  or,  in  England,  to  three  clear  days,  where  he 
is  remanded  by  verbal  order ;'  and  although  these  rules  have  not 
been  extended  by  express  enactment  to  cases  in  which  justices  deal 
summarily  with  defendants  by  conviction  or  order,  they  would  pro- 
bably be  considered  by  the  judges  as  furnishing  a  guide,  which 
ought  on  such  occasions  to  be  respected.  If,  therefore,  in  any  of 
these  cases,  the  question  should  arise  whether  a  party  had  been 
remanded  for  a  reasonable  time,  the  jury  would  be  called  upon,  as 
in  the  case  of  probable  cause,  to  ascertain  the  existence  of  the  facts, 
and  to  leave  the  court  to  determine,  upon  those  facts,  whether  the 
time  was  reasonable  or  not.'  On  two  occasions,  indeed,  in  England,^ 
and  on  one  in  Ireland,*  the  entire  question  appears  to  have  been 
submitted  to  the  jury,  but  the  latter  of  the  two  English  cases 
rested  upon  the  authority  of  the  former,^  and  in  the  former  no 
objection  was  taken  at  Nisi  Prius  to  the  summing  up  of  the  judge, 

person  charged  may  be  remanded  ' '  to  the  next  practicable  sitting  of  a  petty 
sessional  court, ' '  though  such  remand  may  be  for  more  than  eight  days.  42  & 
43  v.,  c.  49,  §  24,  subs.  2. 

^  11  &  12  v.,  c.  42,  §  21,  enacts,  that  "if,  from  the  absence  of  witnesses, 
or  from  any  other  reasonable  cause,  it  shall  Ijocome  necessary  or  advisable 
to  defer  the  examination,  or  further  examination,  of  the  "nitnesses  for  any 
time,  it  shall  be  lawful  to  and  for  the  justice  or  justices,  before  whom  the 
accused  shall  appear  or  be  brought,  by  his  or  their  warrant,  from  time  to 
time  to  remand  the  party  accused  for  such  time  as  by  such  justice  or  justices, 
in  their  discretion,  shall  be  deemed  reasonable,  not  exceeding  eight  clear  days, 
to  the  common  gaol  or  house  of  correction,  or  other  prison,  lock-up-house,  or 
place  of  security,  in  the  county,  riding,  division,  liberty,  city,  borough,  or 
place,  for  which  such  justice  or  justices  shall  then  be  acting  :  or  if  the  remand 
be  for  a  time  not  exceeding  three  clear  days,  it  shall  be  lawful  for  such 
justice  or  justices  verbally  to  order  the  constable,  or  other  person  in  whose 
custody  such  party  accused  may  then  be,  or  anj-  other  constable  or  person  to 
be  named  by  the  said  justice  or  justices  in  that  behalf,  to  continue  or  keep 
such  party  accused  in  his  custody,  and  to  bring  him  before  the  same,  or  such 
other  justice  or  justices  as  shall  be  there  acting,  at  the  time  appointed  for  con- 
tinuing such  examination."   See,  as  to  the  Irish  law,  14  &  15  V.,  c.  93,  |  14,  Ir. 

2  Davis  V.  Capper,  10  B.  &  C.  28  ;  5  M.  &  R.  53  ;  4  C.  &  P.  134,  S.  C. 

*  Davis  V.  Capper,  10  B.  &  C.  30,  per  Gaselee,  J. ;  Cave  v.  Mountain,  1 
M.  &  Gr.  2fi0,  per  Ld.  Abineer  ;  1  Scott.  N.  R.  132,  S.  C. 

*  Gillman  v.  Connor,  2  .Tebb  &  Sy.  210. 

5  Cave  V.  Mountain,  1  M.  &  Gr.  263,  per  Tindal,  C.  J.,  who  adds  that  Ld. 
Abinger,  who  tried  the  cause,  was,  "under  all  the  circumstances,  satisfied  with 
the  verdict,"  and,  consequently,  the  propriety  of  his  leaving  the  question  to  the 
jury  could  not  practically  be  questioned  in  the  court  above. 

(2916) 


CHAP.  III.]  REASONABLE  TIME.  51 

but  on  a  subsequent  motion  in  Banc  its  correctness  was  questioned, 
and  at  the  second  trial  the  course  stated  above  was  distinctly 
adopted.'  So,  under  the  old  law,  which  used  to  render  a  sheriff 
liable  to  an  action  for  an  escape,"  the  question  whether  the  officer 
was  guilty  of  vinreasonable  delay  in  taking  the  party  arrested  to 
prison,  was  one  for  the  determination  of  the  judge,^  and  the  same 
rule  applies  when  the  question  is,  whether  an  arrest  has  been 
countermanded  within  a  reasonable  time,*  or  whether  an  executor 
has  had  reasonable  time  to  remove  the  goods  from  the  testator's 
mansion.^ 

§  30.  On  the  other  hand,  it  appears  to  have  been  held,  that  the  ^  30 
questions,  whether  a  crop  has  been  left  on  the  ground  for  a 
reasonable  time,''  so  as  to  enable  the  tithe-owner  to  compare  the 
tithe  set  out  with  the  remainder  of  the  produce;  whether  a  copy 
of  a  rate  has  been  delivered  by  an  overseer  to  an  inhabitant  within 
such  reasonable  time  as  to  satisfy  the  Act,^  which  requires  it  to 
be  given  "  forthwith "  upon  demand  and  tender  of  payment;* 
whether  the  vendor  of  railway  shares  has  offered  to  transfer  them 
within  a  reasonable  time;'  whether  the  owner  of  cattle,  which 
have  strayed  on  land  through  defect  of  the  proprietor's  fences,  has 
removed  them  within  a  reasonable  time;'"  whether  goods  purchased 
by  sample  have  been  rejected,"  or  goods  taken  by  distress  have  been 
sold,'"  within  a  reasonable  time;  whether  a  foreign  or  inland  bill  of 
exchange  payable  at  or  after  sight  has  been  presented,'^— whether 


1  Davis  V.  Capper,  4  C.  &  P.  134  a,  138;  10  B.  &  C.  33,  35,  36,  S.  C. 

'^  Such  an  action  is  no  longer  maintainable,  either  in  England  or  in  Ireland; 
40  &  41  v.,  c.  21,  ?  31 ;  40  &  41  V.,  c.  49,  §  43,  Ir. 

=*  Benton  v.  Sutton,  1  B.  &  P.  28,  per  Heath,  J. 

*  Scheibel  v.  Fairbairn,  1  B.  &  P.  388.  Heath,  J.,  there  held,  that  the  arrest 
ought  to  have  been  countermanded  in  the  course  of  the  day  in  which  the  debt 
was  received. 

^  Co.  Lit.  §  69,  and  p.  50  b. 

*=  Facey  v.  Hurdom,  3  B.  &  C.  213. 

■^  17  G.  2,  c.  3,  §  2. 

«  Tennant  v.  Bell,  9  Q.  B.  684. 

"  Stewart  v.  Canty,  8  ]\I.  &  W.  160. 

'»  Goodwyn  v.  Chevely,  4  H.  &  N.  631. 

"  Parker  v.  Palmer,  4  B.  &  A.  387.  '^  Pitt  v.  Shew,  4  B.  &  A.  206. 

"  Muilman  v.  D'Equino,  2  H.  Bl.  504 ;  Fry  v.  Hill,  7  Taunt.  397.  See 
ante,    §  30,  ad.  fin.     In  determining  this  question,  the  jury  should  be  directed 

(2917) 


52  REASONABLE  SKILL — DUE  DILIGENCE,  ETC.  [PART.  I.' 

a  blank  stamped  acceptance  has  been  filled  np  by  the  holder,'— 
whether  a  voyage  insured  has  been  commenced  or  prosecuted," — or 
whether  costs  have  been  taxed,  within  such  time,^  are  to  be  decided 
by  the  jury.  In  attempting  to  reconcile  these  conflicting  decisions, 
it  may  perhaps  be  urged,  that  the  last-named  questions  turn  upon 
the  ordinary  course  of  business  or  trade,  and  consequently  relate  to 
matters  with  which  the  jury  are  peculiarly  acquainted;  but  whether 
this  ba  a  satisfactory  solution  of  the  difficulty  is  a  matter  on  which 
no  opinion  is  here  expressed. 

§  37.  Questions  of  reasonable  skill  or  care,  due  diligence,  and  gross    §  31 
negligence  must,  in  the  great  majority  of  instances,  be  determined 
by  the  jury,*  since  the  judges  can  rarely  have  materials  which  will 

to  take  into  consideration  the  interests,  not  only  of  the  drawer,  but  of  the 
holder  also.  Ramchurn  Mullick?'.  Luckmcechund  Radakissen,  9  Moo.  P.  C.  R. 
46;  Mellish  r.  Rawdon,  9  Bing.  416.  See  Chart.  Merc.  Bk.  of  India,  &c.  v. 
Dickson,  3  Law  Rep..  P.  C.  574;  and  Van  Diemen's  Land  Bk.  v.  Victoria  Bk., 
40  L.  J.,  P.  C.  28. 

^  Temple  v.  Pullen,  8  Ex.  R.  389.  The  question  of  reasonable  time  does 
not  arise  in  the  case  of  a  bank  acceptance,  when  the  bill  is  in  the  hands  of  a 
bona  fide  indorsee  lor  value  without  notice.  Montague  v.  Perkins,  22  L.  J., 
C.  P.  187. 

2  Mount  V.  Larkins,  8  Bing.  108;  1  M.  &  Sc.  165,  S.  C;  Phillips  v. 
Irving,  7  M.  &  Gr.  325.  In  this  last  case,  the  question  was  left  by  consent 
for  the  decision  of  the  court,  who  held,  "that  no  certain  or  fixed  time  could 
be  said  to  be  a  reasonable  or  unreasonable  time  for  seeking  a  cargo  in  a  foreign 
port:  but  that  the  time  allowed  miist  vary  with  the  varying  circumstances, 
which  may  render  it  more  or  less  difficult  to  obtain  such  cargo."  Id.  328,  329 
per  Tindal,  C.  J. 

^  Bui-ton  V.  Griffiths,  11  M.  &  AV.  817.  In  this  case  there  was  an  expres.s 
traverse  of  reasonable  time,  and  the  judges  above  concurred  with  the  finding 
of  the  jury. 

*  In  the  Metropol.  Ry.  Co.  v.  Jackson,  L.  R.,  3  App.  Cas.  193,  197;  and  47 
L.  J.,  C.  P.  303,  405,  S.  C,  Ld.  Cairns,  C,  in  Dom.  Proc,  thus  explained 
tlie  principles  applicable  to  these  cases  : — "The  judge  has  to  say  whether  any 
facts  have  been  established  by  evidence  from  which  negligence  viay  be 
reasonably  inferred;  the  jurors  have  to  say  whether,  from  those  facts,  when 
submitted  to  them,  negligence  ought  to  he  inferred.  It  i.s,  in  my  opinion,  of 
the  greatest  importance  in  the  administration  of  justice  that  the  separate 
functions  should  be  maintained,  and  should  be  maintained  distinct.  It  would 
be  a  serious  inroad  on  the  province  of  the  jury,  if,  in  a  case  where  there  are 
facts  from  which  negligence  may  reasonably  be  inferred,  the  judge  were  to 
withdraw  the  case  from  the  jury  upon  the  ground  that,  in  his  opinion,  negli- 
gence ought  not  to  be  inferred;  and  it  would,  on  the  other  hand,  place  in 
the  hands  of  the  jurors  a  power  which  might  be  exercised  in  the  most  arbi- 
trary manner,   if  they  were   at  liberty   to   hold   that  negligence   might  be 

(2918) 


CHAP.  III.]  REASONABLE  SKILL — GROSS  NEGLIGENCE,  ETC.  53 

enable  them  to  decide  such  questions  by  rules  of  law.  Thus,  if  an 
action  be  brought  against  a  surgeon  for  negligence  in  the  treatment 
of  his  patient,'  or  against  a  gratuitous  bailee  for  gross  carelessness 
in  losing  the  property  intrusted  to  his  care,^  what  law  can  possibly 
define  whether  such  and  such  conduct  amounts  to  sufficient  negli- 
gence on  the  part  of  the  defendant  to  entitle  the  plaintifp  to  a 
verdict?  In  these  and  the  like  cases,  therefore,  the  question  has 
usually  been  left  entirely  to  the  jury,  and  even  when  they  have 
found  a  verdict  in  opposition  to  the  opinion  of  the  presiding  judge, 
the  court  has  generally  refused  to  grant  a  new  trial.^  In  some  cases, 
where  the  question  relates  to  matters  of  legal  practice,  as,  for  in- 
stance, if  a  sheriff  be  charged  with  neglect  of  duty  in  not  executing  a 
writ,  or  if  a  solicitor  be  sued  for  negligence  in  conducting  an  action, 
the  judges  would  seem  to  be  more  competent  than  a  jury  to  decide 
whether  the  facts  proved  amount  to  a  want  of  reasonable  care;  but 
even  in  such  cases  it  seems  that  the  province  of  the  judge  is  merely 
to  inform  the  jury  for  what  species  or  degree  of  negligence  the 
defendant  is  answerable,*  and  what  duty  in  the  particular  case 
devolved  upon  him,  either  by  the  statute  or  common  law,  or  the 
practice  of  the  court;  and  then,  having  done  this,  he  will  leave  the 

inferred  from  any  state  of  facts  whatever."  These  sentences  read  smoothly, 
but  the  application  of  them  will  sometimes  prove  to  be  a  tough  job.  See 
the  case  itself,  which  called  forth  the  Lord  Chancellor's  remarks.  See,  also, 
Bridges  v.  N.  Lond.  Sy.  Co.,  7  Law  Rep.,  H.  L.  213;  43  L.  J.,  Q.  B.  151, 
S.  C;  Robson  v.  N.  East.  Ry.  Co.,  46  L.  J.,  Q.  B.  50;  L.  R.,  2  Q.  B.  D.  85, 
S.  C.  in  Ct.  of  App.;  Rose  v.  N.  East.  Ry.  Co.,  L.  R.,  2  Ex.  D.  248,  per  Ct. 
of  App. ;  46  L.  J.,  Ex.  374,  S.  S.  ^  2  A.  &  E.  261,  per  Taunton,  J. 

2  Doorman  v.  Jenkins,  2  A.  &  E.  256;  4  N.  &.  M.  170,  S.  C. 

^  Doorman  v.  Jenkins,  2  A.  &  E.  200 — 206,  per  Cur.,  commenting  on  and 
explaining  Shiells  v.  Blackburne,  1  H.  Bl.  158;  Moore  v.  Mourgue,  2  Cowp. 
479. 

*  In  Godefroy  v.  Dalton,  6  Bing.  460,  the  judges  decided  that  an  attorney 
had  not  been  guilty  of  such  negligence  as  would  render  him  liable  to  an 
action.  "The  cases,"  said  Tindal,  C.  J.,  in  pronouncing  the  judgment  of  the 
court,  "appear  to  establish  in  general,  that  the  attorney  is  liable  for  the  con- 
sequences of  ignorance  or  non-observance  of  the  rules  of  practice  of  this 
court;  for  the  want  of  care  in  the  prej^aration  of  the  cause  for  trial;  or  of 
attendance  thereon  with  his  witnesses;  and  for  the  mismanagement  of  .so 
much  of  the  conduct  of  a  cause,  as  is  usually  and  ordinarily  allotted  to  his 
department  of  the  profession.  Whilst,  on  the  other  hand,  he  is  not  answer- 
able for  error  in  judgment  upon  points  of  new  occurrence,  or  of  nice  or 
doubtful  construction,  or  of  such  as  are  usually  intrusted  to  men  in  a  higher 
branch  of  the  profession  of  the  law."     P.  468. 

(2919) 


54  BONA  FIDES — MALICE — INTENTION.  [PABT  I. 

jury  to  consider  all  the  circumstances  in  evidence,  and  to  decide, 
first,  whether  the  defendant  has  performed  his  duty,  and  next, 
whether,  in  case  of  non- performance,  the  neglect  was  of  that  sort 
or  degree  which  was  venial  or  culpable  in  the  sense  of  not  sus- 
taining or  sustaining  an  action.'  It  may  here  be  added,  that  the 
judges  are  the  proper  parties  to  decide  whether  fines,  customs,  or 
services  are  reasonable,'  and  also  whether  deeds  contain  reasonable 
covenants  or  powers.^ 

§  38.  The  proper  tribunal  for  deciding  questions  of  bona  fides,*  §  32 
actual  knoicledge,^  express  malice,^  real  intention.^  or  reasonable 
cause,  is  the  jury;  but  it  will  presently  be  seen,  in  the  chapter  on 
Presumptive  Evidence,  and  in  other  parts  of  this  work,  that  the  law  , 
will  sometimes  presume  the  existence  of  fraud,  knowledge,  malice, 
intention,  or  justification,  from  the  proof  of  other  remote  facts;  and 
whenever  these  presumptions  are  embodied  in  the  rules  of  law,  the 
court  will  either  draw  the  inference  without  the  aid  of  a  jury,  or  the 
jury  will  be  bound  to  follow  the  directions  of  the  judge.  Moreover, 
for  particular  purposes  the  decision  of  tho>se  questions  is  sometimes 
entrusted  to  the  judge  either  by  the  practice  of  the  court,  or  by  the 
express  language  of  the  Legislature.  Thus,  in  actions  againbt 
magistrates  for  acts  done  in  the  execution  of  their  office,  the  judge 
must  decide  whether  notice  of  action  is  necessary,  and  the  question 
of  bona  fides  must  consequently  be  determined  by  him,  and  not  by 
the  jury.*     So  when  an  amendment  is  sought  to  be  made  at  Nisi 

^  Hunter  v.  Caldwell,  10  Q.  B.  69,  82,  per  Ld.  Denman;  Reece  r.  Rigby, 
4  B.  &  A.  202,  per  Abbott,  C.  J. ;  Shilcock  v.  Passman,  7  C.  &  P.  292,  293, 
per  Alderson,  B. 

2  Co.  Lit.  56  6,  59  6;  Wilson  v.  Hoare,  10  A.  &  E.  236;  Bell  t;.  Ward  ell, 
Willes,  202.  ^  Smith  v.  Doe  d.  Jersey,  2  B.  &  P.  592,  per  Abbott,  C.  J. 

*  Wedge  V.  Berkeley,  6  A.  &  E.  663;  1  N.  &  P.  665,  S.  C;  Moore  v. 
Mourgue,  2  Cowp.  480;  Gray  v.  Dinnen,  2  Jebb.  &  Sy.  265;  Coxhead  v. 
Richards,  2  Com.  B.  584,  per  Cresswell,  J.;  Hazeldine  v.  Grove,  3  Q.  B.  1007; 
Hughes  V.  Buckland,  15  M.  eS:  W.  346;  Horn  v.  Thornborough,  3  Ex.  E.  846; 
6  Dowl.  &  L.  651,  S.  C;  Douglas  v.  Ewing,  6  Ir.  Law  E.,  N.  S.  395.  See 
ante,  I  29.  ^  Harratt  v.  Wise,  9  B.  &  C.  712. 

®  As  in  actions  for  malicious  prosecution  or  arrest.  Mitchell  v.  Jenkins,  5 
B.  &  Ad.  588;  1  Camp.  207,  n.  a. 

'  Doe  V.  Wilson,  11  East,  56;  Powis  v.  Smith,  5  B.  &  A.  850;  Doe  v. 
Batten,  1  Cowp.  243;  Zouch  v.  Willingale,  1  H.  Bl.  312,  per  Gould  and 
Wilson.  Js. ;  Cox  v.  Reid,  13  Q.  B.  558. 

«  Kirby  v.  Simpson,  23  L.  J.,  M.  C.  165;  Arnold  v.  Hamel,  9  Ex.  R.  404. 

(2920) 


CHAP.    III.]  COSTS  IN  SUPREME  COURT.  55 

Prius,  it  is  the  duty  of  the  judge  to  determine,  as  a  matter  of  fact, 
from  the  pleadings  and  the  evidence,  what  is  the  real  question  in 
controversy  between  the  parties.'  Again,  under  the  Act  of  30  &  31 
v.,  c.  142,  §  5,  as  embodied  in  the  Supreme  Court  of  Judicature 
Act,  1873,"  and  amended  by  45  &  40  Vict.,  c.  57,  §  4,  a  suitor  in 
the  Supreme  Court,  who  recovers  less  than  201.  in  any  action 
founded  on  contract,  or  lOl.  in  any  action  founded  on  tort,^  is  not 
entitled  to  any  costs,  unless  the  judge  shall  certify  that  there  was 
"  sufficient  i-eason'"  for  suing  in  such  court,  or  unless  the  court  or 
a  judge  at  chambers  shall  by  rule  or  order  allow  such  costs.  In 
actions,  too,  founded  on  contract,  in  which  the  plaintiff  recovers,  in 
the  Supreme  Court,  a  sum  (exclusive  of  costs)  not  exceeding  50Z., 
he  is  entitled  to  no  more  costs  than  those  recognised  in  County 
Courts,  unless  the  court  or  a  judge  otherwise  orders.* 

§  39.  In  most  other  proceedings  in  the  Supreme  Court,  the 
costs  are  now  in  the  court's  discretion,  the  law  being  embodied  in 
the  following  rule  :- — ^ 

"  Subject  to  the  provisions  of  the  Acts  ^  and  these  Rules,  the 
costs  of  and  incident  to  all  proceedings  in  the  Supreme  Court, 
including  the  administration  of  estates  and  trusts,  shall  be  in  the 
discretion  ot  the  court  or  jadge  :  Provided  that  nothing  herein  con- 
tained shall  deprive  an  executor,  administrator,  trustee,  or  mort- 
gagee, who  has  not  unreasonably  instituted  or  carried  on  or  resisted 
any  proceedings,  of  any  right  to  costs  out  of  a  particular  estate  or 
fund,  to  which  he  would  be  entitled  according  to  the  rules  hitherto 
acted  upon  in  the  Chancery  Division:  Provided  also  that,  where 
any  action,  cause,  matter,  or  issue  is  tried  with  a  jury,  the  costs 
shall  folloiu  the  event,  unless  the  judge  by  whom  such  action,  cause, 
matter,  or  issue  is  tried,  or  the  court,  shall,  for  good  cause,  otherwise 
order.  "^ 


1  Wilkin  V.  Reed,  15  Com.  B.  192,  198,  205.         ^  gg  ^  37  y^  j.  qq^  ^  qj 

^  All  action  of  detinue  is  "  an  action  founded  on  tort"  within  the  meaning 
of  this  enactment;  Bryant  v.  Herbert,  L.  E.  3  C.  P.  D.  389,  per  Ct.  of  App. ; 
47  L.  J.,  C.  P.  670,  S.  C.  *  Rules  of  Sup.  Ct.  1883,  Ord.  Ixv..  r.  12. 

»  Rules  of  Sup.  Ct.  1883,  Ord.  Ixv.,  r.  1. 

«  These  are  "  the  Sup.  Ct.  of  Judic.  Acts,  1873  to  1879,  and  1881."  and 
"the  App.  Jurisd.  Act,  1876."     See  Ord.  Ixxi.,  r.  1. 

'  Quaere,  Does  this  Rule  extend  to  the  Liverpool  Passage  Court?  See  King 
V.  Hawksworth,  L.  R.,  4  Q.  B.  D.  371 ;  and  36  &  37  V.,  c.  66,  §  91. 

(2921) 


56  SUCCESSFUL  LITIGANT,  WHEN  DEPRIVED  OF   COSTS.    [PART   I. 

§  39a.  In  interpreting  the  above  Rule  it  seems  clear,  that  when 
a  cause  is  tried  with  a  jury,  the  presiding  judge  may  deprive  a 
successful  litigant  of  costs,  either  on  an  application  being  made  to 
him  for  that  purpose,  or  of  his  own  motion.^  If  an  application  be 
made  to  the  judge,  that  step  should  be  taken  either  during  the 
trial,  or  within  a  reasonable  time  after  its  termination;"  and  if 
the  application  be  addressed  to  the  court,  it  must — to  be  successful 
— be  made  without  undue  delay,  but  the  court  will  have  jurisdiction 
to  entertain  it,  whether  a  previous  application  to  the  judge,  who 
tried  the  cause,  has  or  has  not  been  made.^  In  no  case,  however, 
will  either  the  judge  or  the  court  deprive  the  successful  litigant  of 
his  costs  unless  for  good  cause.*  With  respect  to  what  constitutes 
"  good  cause,"  it  has  been  held,  that  although  the  judge,  in  exer- 
cising his  discretion,  must  assume  the  truth  of  the  facts  found  by 
the  jury,  he  is  not  confined  to  the  consideration  of  the  party's 
conduct  in  the  course  of  the  litigation,  but  he  may  consider  such  of 
his  previous  acts  as  have  conduced  to  the  action.^  In  the  case 
which  called  forth  the  above  ruling  by  the  Court  of  Appeal,  the 
jury  had  awarded  the  plaintiff  10/.  as  damages  for  a  libel,  and  the 
judge,  notwithstanding,  had  deprived  him  of  his  costs,  on  the 
ground  that  he  had  by  his  own  incautious  conduct, — to  use  the 
mildest  phrase, — brought  upon  himself  the  defamatory  attack^ 
On  the  other  hand,  the  court  has  decided  that,  in  an  action  of 
collision  of  ships,  in  which  the  defendant  had  succeeded  solely  on  a 
plea  of  compulsory  pilotage,  he  ought  not  to  be  deprived  of  costs 
in  the  Exchequer  Division,  simply  because  such  a  result  would 
have  followed  in  the  old  Court  of  Admiralty.' 

The  "  euen^,"  which,  in  the  absence  of  a  special  order,  costs  are 
to  "follow,"   is  not   a  happily  chosen   phrase,  as  the  attempts  to 

1  Turner  v.  Heyland,  48  L.  J.,  C.  P.  535;  L.  rT,  Tc!  P.  D.  432,  S.  C; 
Collins  D.  Welch.  L.  R.,  5  C.  P.  D.  27;  S.  C.  on  App.,  49  L.  J.,  C.  P.  260; 
Marsden  v.  Lane.  &  York  Ry.  Co.,  50  L.  J.,  Q.  B.'318,  per  Ct;  of  App. 

2  See  Kynaston  v.  Maekinder,  47  L.  J.,  Q.  B.  76,  per  Ct.  of  App. 

*  See  ISivers  v.  Defries,  and  Siddons  v.  Lawrence,  48  L.  J.,  Q.  B.  446,  per 
Ct.  of  App"!:  L.  R.,  4  Ex.  D.  176,  S.  C;  Bowey  r.  Bell,  48  L.  J.,  Q.  B.  161; 
L.  R.,  4  Q.  B.  D.  95,  S.  C;  Gen.  St.  Nav.  Co.  v.  Lond.  &  Ed.  Ship.  Co.,  L.  R., 
2  Ex.  D.  467;  47  L.  .L,  Ex.  77,  S.  C. 

See  "  Jones  V.  Carling,  L.  R.,  13  Q.  B.  D.  262,  where  held  hy  Ct.  of  App.,  1st, 
that  the  facts  must  show  that  it  would  be  more  just  to  disallow  than  to  allow 
the  costs,  as  for  instance,  oppression  or  misconduct  on  part  of  the  successful 
litigant;  2nd,  That  this  question  was  one  respecting  which  an  appeal  would  lie. 

*  See  end  of  Rule. 

*  Harnett  i-.  Vise,  L   R.,  5  Ex.  D.  307,  per  Ct.  of  App.  ^  Id. 

'  Gen.  St.  Nav.Co.  v.  Lond.  &  Ed.  Ship.  Co.,  L.  K,  2  Ex.  D.  467;  47  L.  J., 
Ex.  77,  S.  C. 

(2922) 


CHAP.  III.]  PRIVILEGED  C03IMUNICATI0NS.  57 

interpret  it  have  given  rise  to  much  vexatious  controversy.*  No 
doubt  it  was  intended  to  mean,  and  does  mean,  in  a  general  way, 
the  result  of  all  the  proceedings  incidental  to  the  litigation  in 
question  ;  and,  consequently,  the  costs  which  follow  it  will  include 
the  costs  of  all  stages  of  that  litigation,  as,  for  example,  the  costs 
of  a  first  trial  when  a  second  has  been  ordered.^  But  the  difficulty 
occurs  in  deciding  what  is  to  happen,  when  a  plaintiff  has  united, 
as  he  now  may,  several  independent  causes  of  action,  and  has  suc- 
ceeded on  some  of  the  issues,  and  failed  on  the  others.  In  such  a 
case  several  events  have  practically  been  determined,  but  the  rule 
speaks  only  of  one.  Is  the  plaintiff  then  entitled  to  the  whole 
costs  of  the  actions  if  he  has  gained  a  verdict  on  any  one  item  of 
his  claim,  or  is  the  term  "event"  to  be  read  distributively,  in 
which  case  the  plaintiff  will  have  only  the  general  costs  of  the 
cause,  and  the  defendant  will  get  the  costs  of  those  on  which  he 
succeeds  ?  After  much  discussion,  the  Court  of  Appeal  has  at  last 
held,  that  the  rule  must  be  interpreted  in  accordance  with  the 
second  alternative.^ 


§  40.  When  a  question  arises  as  to  whether  a  communication  be  ^  33 
privileged  or  not,  and  the  privilege  be  of  a  character  which  is  not 
regarded  as  absolute  on  public  grounds,*  the  respective  duties  of  the 
judge  and  jury  seem  to  be  as  follows:  first,  the  jury  must  determine 
as  a  question  of  fact,  whether  the  communication  was  made  bond 
fide;  and  then,  if  the  fact  be  found  in  the  affirmative, — as  it  must 
be  if  the  evidence  be  not  sufficient  to  raise  a  probability  that  the 
communication  was  colourably  made,^ — the  judge  must  decide,  as 

1  See  Collins  v.  Welch,  49  L.  J.,  C.  P.  261,  per  Bramwell,  L.  J.;  and  Myers 
V.  Defries,  49  L.  J.,  Ex.  2G6. 

2  Field  V.  Gt.  North.  Ey.  Co.,  L.  II.,  2  Ex.  D.  261  ;  47  L.  J.,  Q.  B.  6G2,  S.  C; 
Harris  V.  Petherick,  48  L.  J.,  Q.  B.  521,  per  Ct.  of  App. ;  L.  R.,  4  Q.  B.  D.; 
611,  S.  C;  Creen  v.  Wright,  L.  II.,  2  C.  P.  D.  354  ;  46  L.  J.,  C.  P.  427,  per 
Ct.  of  App.,  S.  C. 

^  Myers  v.  Defries,  49  L.  J.,  Ex.  266,  per  Lds.  Js.  ;  L.  R.,  5  Ex.  D.  180, 
S.  C;  Ellis  V.  Desilva,  50  L.  J.,  Q.  B.  323,  per  Ct.  of  App.;  L.  R.,  6  Q.  B.  D. 
521,  S.  C;  Sparrow  v.  Hill,  50  L.  J.,  Q.  B.  410;  L.  R.,  7  Q.  B.  D.  362,  S.  C. 

*  As  to  such  privileged  commnnications,  see  Dawkins  v.  Paulet,  5  Law 
Rep.,  Q.  B.  94  ;  9  B.  &  S.  768 ;  39  L.  J.,  Q.  B.  53,  S.  C;  and  Dawkins  v.  Ld. 
Eokeby,  8  Law  Rep.,  Q.  B.  255,  per  Ex.  Ch.;  42  L.  J.,  Q.  B.  63,  S.  C. 

*  Taylor  v.  Hawkins,  16  Q.  B.  308 ;  Somerville  v.  Hawkins,  10  Com.  B. 
583. 

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58  UNSOUNDNESS  OF  IIOKSE — INFRINGEMENT  OF  PATENTS.  [PAET  I. 

a  question  of  law,  whether  the  occasion  of  the  publication  was  such 
as  to  rebut  the  inference  of  malice.'  If,  however,  any  doubt  should 
exist  as  to  whether  or  not  the  defendant  had  in  some  respect 
exceeded  the  limits  of  his  privilege,  and  had  made  comments,  which 
might  be  regarded  as  evidence  of  actual  malice,  the  opinion  of  the 
jury  must  be  taken  upon  the  effect  of  such  evidence." 


§  41.  It  is  still  a  moot  point  whether,  on  an  indictment  for  §  34 
perjury,  the  materiality  of  the  matter  in  which  the  false  swearing 
is  proved,  is  a  question  of  fact  for  the  jury,  or  a  question  of  law  for 
the  judge  ;  but,  according  to  the  better  opinion,  it  ought  to  be 
regarded  in  the  latter  light.  ^  It  seems,  however,  that  questions 
respecting  permissive  occupation  ;*  the  assent  of  an  executor  to  a 
bequest;^  the  unsoundness  of  a  horse;*'  the  delivery  of  a  document 
as  an  escrow,  unless  the  question  turn  solely  on  the  construction  of 
writings  ;^  the  infringement  of  a  patent,*  where  such  infringement 
does  not  depend  merely  on  the  construction  of  the  specification  f 
the  novelty  of  a  design,  within  the  meaning  of  the  Acts  relating  to 
copyright  of  design  for  articles  of  manufacture  ;'"  the  existence  of  a  * 
nuisance,  as  caused  by'erecting  a  bridge  or  weir  in  a  navigable 
stream  ;"  the  definition  of   the  word  "street,"'^  except  in  certain 

1  Coxhead  v.  Eichards,  2  Com.  B.  584,  603,  per  Cresswell,  J. ;  600,  per 
Coltman,  J.;  Stace  v.  Griffith,  6  Moo.  P.  C,  N.  S.  18. 

2  Cooke  V.  Wildes,  5  E.  &  B.  328. 

^  See  and  compare  R.  v.  Courtney,  7  Cox,  111  ;  5  Ir.  Law  R.,  N.  S.  434, 
S.  C;  R.  V.  Lavey,  3  C.  &  Kir.  26;  R.  v.  Dunstan,  Ry.  &  M.  109. 

*  Lessee  of  Phayre  v.  Fahy,  Hayes  &  Jon.  128  ;  Jones  \\  Boland,  2  Jebb 
&  Sy.  289;  but  see  Whiteacre  v.  Symonds,  10  East,  13. 

*  Mason  V.  Farnell,  12  M.  &  W.  674,  even  though  "the  question  depends 
upon  the  careful  and  somewhat  critical  comparison  of  the  terms  of  a  deed, 
with  the  other  circumstances  and  facts  of  the  case,"  per  Alderson,  B.,  id.  682, 
pronouncing  the  judgment  of  the  court.  See  also  Elliott  v.  Elliott,  9  M.  & 
W.  27,  per  Ld.  Abinger. 

^  See  per  Patteson,  J.,  in  Baylis  v.  Lawrence,  11  A.  &  E.  926. 

'  Furness  v.  Meek,  27  L.  J.,  Ex.  34.     See  post,  U  43,  1834. 

8  De  la  Rue  v.  Dickenson,  7  E.  &  B.  738  ;  Lister  v.  Leather,  27  L.  J.,  Q.  B. 
295;  8  E.  &  B.  1004,  S.  0. 

«  Seed  V.  Higgins,  8  H.  of  L.  Cas.  550,  561,  565.     See  post,  |  43. 

"  Harrison  u  Taylor,  29  L.  J.,  Ex.  3. 

"  R.  V.  Betts,  16  Q.  B.  1022  ;  R.  v.  Russell,  6  B.  &  C.  566  ;  R.  v.  Ward,  4 
A.  &  E.  384. 

12  R.  V.  Fnllford,  1  L.  &  Cave,  403  ;  9  Cox,  453,  S.  C. 

(2924) 


CHAP.  III.]  CONDONATION — TENDER — NECESSARIES.  59 

cases  where  the  term  has  been  employed  in  an  Act  of  Parliament;* 
the  seaworthiness  of  a  ship;'  the  materiality  of  facts  not  com- 
municated in  effecting  an  insurance;^  the  competency  of  a  testator 
in  a  will  cause,  and  his  freedom  from  undue  influence  ;*  the 
cruelty  of  a  husband  as  a  ground  for  judicial  separation;'^  and  the 
condonation  of  a  conjugal  offence,®  are  for  the  jury,  though  the 
judge  ought  to  take  care  that  they  are  not  misled  by  anything  that 
comes  out  in  the  evidence.'  So,  it  is  the  undoubted  privilege  of 
the  jury  to  determine  whether  there  has  been  an  acceptance  of  goods 
sufficient  to  satisfy  the  Statute  of  Frauds.*  So,  the  question 
whether  a  tender  be  absolute  or  conditional  is  usually  one  for  the 
jury;®  the  court,  however,  being  mindful  to  point  out  that  a  tender 
is  not  invalid  in  law  as  being  conditional,  if  it  merely  implies  that 
the  debtor  admits  no  more  to  be  due,  but  that  it  must  go  further, 
and  imply  that  the  creditor,  if  he  consents  to  take  the  sum  offered, 
will  be  required  to  admit  that  his  entire  claim  is  satisfied.^"  The 
jury,  also,  in  any  question  relating  to  the  amount  of  interest  payable 
on  a  foreign  bill  of  exchange,  will  determine  as  facts,  first,  what 
rate  of  interest  is  usually  paid  at  the  respective  places  where  the 
bill  was  drawn  or  indorsed  or  accepted,  and  next,  whether  the 
plaintiff  has  sustained  any  damage  requiring  the  payment  of  interest 
at  all;  but  the  judge  will  decide  as  a  pure  question  of  law,  whether 
the  case  is  to  be  goverened  lege  loci  contractus,  or  lege  loci  solutionis}^ 

§  42.  The  jury  must  decide  whether  articles  supplied  to  an  infant    I  35 
be  necessaries.*  but  their  decision  is  subject  to   the  control  of  the 


1  Robinson  v.  Local  Board  of  Barton,  52  L.  J.,  Ch.  5;  L.  R.  21  Ch.  D. 
621,  S.  C.     See  Maude  v.  Baildon  Local  Board,  L.  R.,  10  Q.  B.  D.  394. 

2  Clifford  V.  Hunter,  3  C.  &  P.  16,  per  Ld.  Tenterden;  M.  &  M.  103,  S.  C. 
^  Rawlings  v.    Desborough,  2  M.  &  Rob.  328,  per  Ld.  Denman. 

*  Purdon  v.  Ld.  Longford,  I.  R.,  11  C.  L.  267. 
5  Tomkins  v.  Tomkins,  1  Swab.  &  Trist.  168. 

«  Peacock  v.   Peacock,  1  Swab.  &  Trist.  183. 

^  Per  Ld.  Abinger  in  Mackintosh  v.  Marshall,  11  M.  &  "W.  126. 

*  Lilly  white  v.  Devereux,  1.5  M.  &  W.  291,  per  Alderson,  B.,  recognising 
Edan  v.  Dudfield,  1  Q.  B.  302,  307;  4  P.  &  D.  656,  S.  C;  Clark  v.  Wright, 
11  Ir.  Law  R.,  N.  S.  402. 

8  Eckstein  v.  Reynolds,  7  A.  &  E.  80;  Marsden  v.  Goode,  2  C.  &  Kir.  133. 
^^  Bowen  v.   Owen,    11   Q.    B.   130;   Bull  v.  Parker,   2  Dowl.,   N.  S.  345; 
Henwood  v.  Oliver,  1  Q.  B.  409. 
"  Gibbs  V.  Fremont,  9  Ex.  R.  25. 

(2925) 


60  INFANT — NECESSARIES.  [pART.  I. 

judges/  who  have  laid  down,  as  general  rules  of  law,  first,  that 
this  question  does  not,  in  any  degree,  depend  upon  what  allowance 
the  infant  may  have  received  from  his  father,  and  may  have  mis- 
applied;" secondly,  that  the  articles  must  be  really  useful,  and 
therefore  that  merely  ornamental  jewelry,^  or  luxurious  confec- 
tionary,* ar'e  not- necessaries;  and  thirdly,  that,  if  useful,  they  must 
be  such  as  would  be  necessary  and  suitable  to  the  degree  and  station 
in  life  of  the  infant.^  In  a  case,  where  the  jury,  in  opposition  to 
the  opinion  of  the  judge,  found  that  the  hiring  of  horses  and  gigs 
was  necessary  for  an  Oxford  undergraduate,  he  being  the  younger 
son  of  a  man  of  fortune,  and  keeping  a  horse  of  his  own,  the  court 
set  aside  the  verdict  as  perverse,  and  granted  a  new  trial  ;'^  and  the 
same  course  was  pursued,  where  an  Irish  jury  had  found  that  a 
hunter  was  "necessary"  for  a  mere  boy,  who,  having  bragged  at  a 
ball  that  he  was  a  member  of  the  Surrey  Stag  Hunt,  and  worth 
600Z.  a  year,  had  induced  an  Irishman  to  sell  him  his  horse  for 
150^.,  had  hunted  the  animal  through  the  season,  and  had  then, 
"V^hen  payment  was  demanded,  set  up,  through  his  guardian,  what 
was  described  by  an  indignant  advocate  as  "the  shabby  defence  of 
infancy."  '  Perhaps  the  safest  rule  that  can  be  laid  down  on  this 
subject  is,  that  the  judge  must  determine  whether  the  articles  are 
capable  of  being  necessaries,  regard  being  had  to  the  position  of  the 
defendant;  and  if  he  should  decide  in  the  affirmative,  the  jury  will 
then  have  to  say,  whether  under  the  circumstances  they  were  neces- 
saries or  not.* 

1  Harrison  v.  Fane,  1  M.  &  Gr.  553,  per  Tindal,  C.  J. ;  Ryder  ti.  Wombwell, 
38  L.  J.,  Ex.  8,  per  Ex.  Ch.;  4  Law  Eep.,  Ex.  32,  S.  C. 

2  Burghart  v.  Hall,  4  M.  &  W.  727;  Peters  v.  Fleming,  6  M.  &  W.  46;  but 
see  Barnes  v.  Toye,  L.  R.,  13  Q.  B.  D.  410,  where  held  that,  on  a  question  of 
necessaries,  infant  might  prove  that  at  date  of  sale  he  was  sufficiently  supjjlied 
with  other  similar  goods. 

^  Peters  v.  Fleming,  6  M.  &  W.  47,  48,  per  Parke  &  Alderson,  Bs. ;  Ryder 
V.  Wombwell,  38  L.  J.,  Ex.  8,  per  Ex.  Ch. ;  4  Law  Rep.,  Ex.  32,  S.  C.  In 
the  latter  case,  a  pair  of  jeweled  solitaires  and  a  silver-gilt  goblet  were  held 
not  to  be  "necessaries";  but  in  the  former  case  it  was  determined  that  the 
j  ury  were  entitled  to  say,  whether  a  watch  and  gold  chain  were  necessaries 
for  an  undergraduate.     They  found,  as  is  their  wont,  in  the  affirmative. 

*  Brooker  v.  Scott,  11  M.  &  W.  67;  Wharton  v.  Mackenzie,  and  Cripps  v. 
Hills.  1  D.  &  M.  544;  5  Q.  B.  606,  S.  C. 

s  Peters  v  Fleming,  6  M.  &  W.  42. 

^  Harrison  v.  Fane,  1  M.  &  Gr.  550. 

'  Skrine  v.  Gordon,  I.  R.  9  C.  L.  479. 

«  Wharton  v.  Mackenzie,  and  Cripps  v.  Hill,  5  Q.  B.  606;  1  D.  &  JM.  544, 
S.  C.  ;in  which  cases  jui-ies  having  decided  that  wine   parties   and   suppers 

(2926) 


CUAP.  III.]  CONSTRUCTION  OF  DOCUMENTS.  Gl 

§  43.  The  construciion  of  all  irritien  documents,^-v}h\c\x  term  it  g  36 
is  presumed  necessarily  includes  Acts  of  Parli:iment,  judicial  records, 
deeds,  wills,  negotiable  instruments,  agreements,  or  letters, — belongs 
to  the  court  alone,  whose  duty  it  is  to  construe  all  such  instruments, 
as  soon  as  the  true  meaning  of  the  tvords  '  in  which  they  are  couched, 
and  the  surrounding  circumstances,  if  any,  have  been  ascertained  as 
facts  by  the  jury;  ^  and  it  is  the  duty  of  the  jury  to  take  the  con- 
struction from  the  coiart,  either  absolutely,  if  there  be  no  words  to 
be  construed  as  words  of  art  or  phrases  used  in  commerce,  and  no 
surrounding  circumstances  to  be  ascertained;^  or  conditionally, 
when  those  words  or  circumstances  are  necessarily  referred  to  them. 
Unless  this  were  so,  there  would  be  no  certainty  in  the  law;  for  a 
misconstruction  by  the  court  is  the  proper  subject  of  redi-ess  in  a  court 
of  error;  but  a  misconstruction  by  the  jury  cannot  in  any  way  be 
effectually  set  right.*  Thus  the  court,  after  obtaining  from  the  jury 
a  mere  explanation  of  technical  termsj'^will  construe  the  specification 
of  a  patent,  though  the  interpretation  of  such  an  instrument, — relat- 
ing as  it  does  to  matters  of  science  and  skill, — would  seem  peculiarly 
adapted  to  the  practical  information  of  jurors;  •*  and  where  a  contract 

were  necessaries  Cor  Oxford  undergraduates,  the  Court  of  Q.  B.  granted  new 
trials.  In  Chappie  v.  Cooper,  13  M.  &  W.  252,  the  court  held  that  the  funeral 
of  a  husband,  who  had  left  no  property  to  be  administered,  might  be  regarded 
as  "necessaries"  supplied  to  his  infant  widow.  Legal  expenses  in  preparing 
a  marriage  settlement  have  also  been  held  "  necessaries  "  for  an  infant  bride. 
Helps  V.  Clayton,  17  Com.  B.,  N.  S.  553. 

1  See  Ashforth  v.  Redford,  9  Law  Rep.,  C.  P.  20;  43  L.  J.,  C.  P.  57,  S.  C; 
Alexander  v.  Vanderzee,  7  Law  Rep.,  C.  P.  530.  But  see  Bowes  v.  Shand,  in 
Dom.  Proc.  8  June,  1877,  affirming  Shand  v.  Bowes,  L.  R.,  1  Q.  B.  D.  470; 
45  L.  J.,  Q.  B.  507,  S.  C. 

''  See  Tamvaco  v.  Lucas,  1  B.  &  S.  185;  S.  C.  in  Ex.  Ch.,  3  B.  &  S.  89; 
Lyle  1'.  Richards,  35  L.  J.,  Q.  B.  214,  in  Dom.  Proc;  1  Law  Rep.,  H.  L.  222, 
S.  C. ;  D.  of  Devonshire  v.  Neill,  2  L.  R.  Jr.  134,  182,  per  Palles,  C.  B. 

^  Key  r.  Cotesworth,  7  Ex.  R.  595.  In  Lang  v.  Smith,  7  Bing.  284,  the 
court  held  that  the  jury  were  rightly  directed  to  determine,  as  a  question  of 
mercantile  usage,  whether  certain  Neapolitan  bonds  passed  by  the  mere 
delivery  of  the  coupons,  without  the  production  of  the  certificates. 

*  Per  Parke,  B.,  pronouncing  the  judgment  of  the  court  in  Neilson  v. 
Harford,  8  M.  &  W.  823.  ^  Hills  v.  Evans,  31  L.  J.,  Ch.  457. 

"  Neilson  v.  Harford,  8  M.  &  W.  806,  818,  819;  2  Webst.  Pat.  R.  295, 
328,  S.  C;  Bovill  v.  Pimm,  11  Ex.  R.  718.  These  cases  virtually  overrule 
Hill  V.  Thompson,  3  Mer.  630,  where  Ld.  Eldon  observed,  that  the  inieUigi- 
bilifij  of  the  description  of  a  specification  was  a  matter  of  fact.  It  is  worthy 
of  remark,  that  in  America  the  sufficiency  of  the  description  in  a  patentee's 

(2927) 


62  CONSTRUCTION  OF  DOCUMENTS.  [PAET  I. 

for  the  sale  of  barley  was  attempted  to  be  proved  by  letters,  one  of 
which  offered  good  barley,  and  the  other  accepted  the  offer,  "  expect- 
ing you  will  give  nsfi7W  barley,  and  good  weight,"  the  court  held,  that 
though  the  jury  might  be  asked  as  to  the  mercantile  meaning  of  the 
words  "  good  "  and  "  fine,"  yet,  after  having  found  that  there  was 
a  distinction  between  them,  they  could  not  further  decide  that  the 
parties  did  not  misunderstand  each  other,  but  were  bound  to  take  the 
interpretation  of  the  contract,  as  a  matter  of  law,  from  the  judge/ 
So,  the  question  whether  the  sum  mentioned  in  an  agreement  to  be 
paid  for  a  breach,  is  to  be  treated  as  a  penalty,  or  as  liquidated 
damages,"  is  one  of  law  to  be  decided  by  the  judge,  upon  a  con- 
sideration of  the  whole  instrument;^  and  the  question  whether  a 
letter  amounts  to  a  guarantee  must  be  determined  by  the  court 
alone,  provided  it  contains  no  words  of  doubtful  trade  meaning,  and 
the  intrinsic  facts  are  not  in  controversy/  So  it  seems  clear, — not- 
withstanding one  or  two  authorities  to  the  contrary,^ — that  the  court 

specification  is  generally  left  as  a  question  of  fact  to  be  determined  by  the 
jury,  unless  the  statement  be  obviously  too  vague.  Wood  v.  Underbill,  5 
How.  S.  Ct.  R.  1,  4.  See  Bush  v.  Fox,  5  H.  of  L.  Cas.  707;  Booth  v. 
Kennard,  2  H.  &  N.  84;  Hills  v.  London  Gaslight  Co.,  5  H.  &  N.  312;  29 
L.  J.,  Ex.  409,  S.  C;  and  Betts  v.  Menzies,  1  E.  &  E.  990,  1020;  in  which 
cases  it  was  held  that,  where  in  a  patent  cause  the  want  of  novelty  appears 
distinctly  from  documents,  such  for  instance  as  a  prior  patent  and  specifica- 
tion, the  judge,  and  not  the  jury,  must  notice  the  identity  of  the  two  supposed 
inventions,  and  the  consequent  want  of  novelty  in  the  second.  See,  too, 
Betts  V.  Menzies,  as  ultimately  decided  in  the  House  of  Lords,  10  H.  of  L. 
Cas.  117;  and  Seed  v.  Higgins,  8  H.  of  L.  Cas.  550,  561,  565.  But  see  also 
the  observations  of  Ld.  Westbury,  Ch.,  on  Bush  v.  Fox,  and  the'law  supposed 
to  be  there  laid  down,  in  Hills  v.  Evans,  31  L.  J.,  Ch.  461,  402. 

^  Hutchison  v.  Bowker,  5  M.  AW.  535.  Parke,  B.,  there  observed,  "The 
law  I  take  to  be  this, — that  it  is  the  duty  of  the  court  to  construe  all  written 
instruments;  if  there  are  peculiar  expressions  used  in  it,  which  have,  in  jmr- 
ticular  places  or  trades,  a  known  meaning  attached  to  them,  it  is  for  the  juri/ 
to  .say  what  the  meaning  of  those  expressions  was,  but  for  thfe  coui-i  to  decide 
what  the  meaning  of  the  contract  was.^^  P.  542.  See  also  Bourne  i;.  GatlifFe, 
3  M.  &  Or.  643,  680,  690;  3  Scott,  N.  R.  1,  S.  C;  Griffiths  v.  Rigby,  1  H.  & 
N.  237;  Hills  v.  London  Gaslight  Co.,  27  L.  J.,  Ex.  60;  Kirkland  v.  Nisbet, 
3  Macq.  Sc.  Cas.,  H.  of  L.  766;  Montgomery  r.  INIiddleton,  13  Ir.  Law  R., 
N.  S.  173. 

2  See  Wallis  v.  Smith,  L.  R.  21  Ch.  D.  243;  52  L.  J.,  Ch.  145,  S.  C. 

^  Sainter  r.  Ferguson,  7  Com.  B.  727,  per  Wilde,  C.  J.  This  question  was 
in  former  times  occasionally  left  to  the  jury.  See  Crisdee  v.  Bolton,  3  C.  & 
P.  240,  per  Best,  C.  J. 

*  Bk.  of  Montreal  v.  Munster  Bk.,  I.  R.  11  C.  L.  47. 

*  Lloyd  V.  Maund,  2  T.  R.  760;  Linsell  v.  Bonsor,  2  Bing.  N.  C.  241. 

(2928) 


CHAP.  III.]  CONSTRUCTION  OF  LETTERS.  63 

must  determine,  whether  a  written  acknowledgement  or  a  debt/  or 
of  title,"  is  sufficient  to  take  the  case  out  of  the  statutes  of  limita- 
tion ;  though,  pei'hapsj  in  a  doubtful  case,  it  may  be  a  prudent 
course  for  the  judge  to  express  his  own  opinion,  and  also  to  take 
the  opinion  of  the  jury  f  and  if  the  document  is  connected  with 
other  evidence  affecting  its  construction,  then  the  whole  must  be 
submitted  to  the  jury  together.* 

§  44.  "With  respect  to  the  construction  of  letters,  the  rule  of  law  ^  36 
appears  to  be,  that,  if  extrinsic  circumstances  be  not  capable  of 
explaining  them,  then,  like  other  documents,  their  interpretation  is 
a  pure  matter  of  law,  in  however  ambiguous  language  they  may  be 
couched;^  but  if  they  be  written  in  so  dubious  a  manner  as  to  bear 
different  constructions,  and  if  they  can  be  explained  by  other  trans- 
actions, the  jury,  who  are  clearly  the  judges  of  the  truth  or  false- 
hood of  such  collateral  facts,  which  may  vary  the  sense  of  the  letters 
themselves,  must  decide  upon  the  whole  evidence.®  Thus,  where 
a  question  arose  in  Ireland  whether  the  defendant  had  adopted  the 
acceptance  of  a  bill,  it  was  held  that  the  construction  of  a  letter 
written  by  him  on  the  subject,  taken  in  connection  with  his  subse- 
quent conduct,  was  entirely  for  the  jury.'  So,  Avhere  a  contract  has 
to  be  made  out  partly  by  letters,  and  partly  by  parol  evidence,  the 
jury  must  deal  with  the  whole  question.^  If  a  document  be  lost, 
and  oral  evidence  be  given  of  its  contents,  the  judge  must  construe 
its  meaning  in  the  same  manner  as  if  it  had  been  produced,  but  the 


1  Morrell  r.  Frith,  3  M.  &  W.  402  ;  Routledge  v.  Ramsay,  8  A.  &  E.  232, 
per  Ld.  Denman. 

2  Doe  V.  Edmonds,  6  M.  &  W.  302,  per  Parke,  B. 

3  Bucket  V.  Church,  9  C.  &  P.  211,  per  Parke,  B.;  Morrell  v.  Frith,  3  M. 
&  W.  406,  per  id. 

*  Routledge  v.  Ramsay,  8  A.  &  E.  222,  per  Ld.  Denman  ;  Morrell  r.  Frith, 
3M.  &W.  402  ;  Moore  v.  Garwood,  4  Ex.  R.  681;  Ashpitel  v.  Sercombe,  5 
Ex.  R.  163,  164  ;  Foster  v.  Mentor  Life  Ass.  Co.,  3  E.  &  B.  48. 

^  Furness  v.  Meek,  27  L.  J.,  Ex.  34. 

"  Per  Buller,  J.  Mackbeath  v.  Haldimand,  1  T.  R.  182 ;  Smith  v.  Thompson, 
8  Com.  B.  44.  See  Lyle  v.  Richards,  35  L.  J.,  Q.  B.  214,  in  Dom.  Proc;  1 
Law  Rep.,  H.  L.  222,  S.  C. 

''  Wilkinson  v.  Storey,  1  Jebb  &  Sy.  509.  See  Brook  v.  Hook,  6  Law  Rep., 
Ex.  89;  40  L.  J.,  Ex.  50,  S.  C. 

8  Bolckow  V.  Seymour,  17  Com.  B.,  N.  S.  107. 

(2929) 


G4  MEANING  OF  TECHNICAL  PHRASES.  [PART  I. 

jury  may,  of  course,  in  such  a  case  be  called  upon  to  declare  whether 
they  believe  the  oral  testimony.* 


§  45.  The  power  of  the  jury  to  interpret  expressions  is  not  con- 
fined to  such  as  are  employed  in  contracts,  or  have  a  peculiar 
commercial  meaning ;  but  seems  to  extend  to  all  phrases,  capable 
of  being  used  in  a  technical  sense,  which  do  not  require  any  know- 
ledge of  the  law  to  explain  them.  Thus,  the  courts  have  more  than 
once  refused  to  entertain  the  question,  whether  an  excavation  is  a 
mine,"  and  as  such  not  rateable  to  the  relief  of  the  poor;  but  having 
so  far  laid  down  a  legal  principle  with  reference  to  the  subject,  as  to 
decide  that  the  method  of  working  was  to  be  considered,  and  not 
the  chemical  or  geological  character  of  the  produce,^  they  have  de- 
clined to  go  further,  and  have  left  the  magistrates  in  Sessions  to 
apply  to  the  question,  as  one  of  fact,  the  information  they  possess, 
and  their  knowledge  of  the  English  language.^  So,  it  has  been  held, 
that  the  jury  must  determine  what  constitutes  such  a  representation 
of  part  of  a  dramatic  production,  as  to  subject  the  person  representing 
it  to  penalties  under  the  Act  of  3  &  4  "W.  4,  c.  15.^  But  if  a  word 
of  doubtful  import  be  used  in  an  Act  of  Parliament,  the  judge  ought 
to  explain  its  general  meaning  ;  and,  therefore,  when,  on  the  trial 
of  an  issue  whether  a  railway  was  passing  through  "  a  town," 
within  the  meaning  of  the  Railway  Clauses  Consolidation  Act,  the 

1  Berwick  v.  Horsfall,  27  L.  J.,  C.  P.  193;  4  Com.  B.,  N.  S.  450,  S.  C. 

^  If  any  question  arises  as  to  whether  a  mine  is  a  mine  within  the  meaning 
of  the  Mines  Eegulation  Acts,  1872,  it  "shall  be  referred  to  a  Secretary  of 
State,  whose  decision  thereon  shall  be  final."  35  &  36  V.,  c.  76,  ^  70  ;  and 
c.  77,  I  39. 

*  See  Darvill  v.  Roper,  3  Drew.  303  ;  Bell  v.  Wilson,  2  Drew.  &  Sm.  395  ; 
35  L.  J.,  Ch.  337,  per  Lds.  Js.,  S.  C;  1  Law  Rep.,  Ch.  Ap.  303,  S.  C;  Dow. 
Duch.  of  Cleveland  r.  Meyrick,  37  L.  J.,  Ch.  125,  per  Malins,  V.-C.  But  see 
Jones  r.  Cwmorthen  Slate  Co.,  L.  R.,  4  Ex.  D.  97  ;  48  L.  J.,  Ex.  486,  S.  C; 
affirmed  on  App.  49  L.  J.,  Ex.  110;  and  L.  R.,  5  Ex.  D.  93,  S.  C.  See  also  Midi. 
Ry.  Co.  V.  Haunch  wood  Brick  and  Tile  Co.,  L.  R.,  20  Ch.  D.  552;  51  L.  J.,  Ch. 
778,  S.  C. 

*  R.  V.  Sedgeley,  2  B.  &  Ad.  65  ;  R.  v.  Brettell,  3  B.  &  Ad.  424  ;  R.  v. 
Dunsford,  2  A.  &  E.  568  ;  4  N.  &  M.  349,  S.  C.  "The  Court  of  Quarter 
Sessions  are  judges  of  law  and  fact.  The  appeal  to  the  Queen's  Bench  is 
confined  to  questions  of  law.  The  distinction,  therefore,  between  the  respective 
provinces  of  the  two  courts  is  so  far  analogous  to  the  distinction  under  dis- 
cussion, as  to  justify  the  drawing  of  illustrations  from  cases  of  appeal."  12  Law 
Mag.  64,  n.  2.  ^  pianch^  v.  Braham,  4  Bing.  N.  C.  19. 

(2930) 


CHAP.    III.]  PROSECUTIONS  FOR  LIBEL.  G5 

judge  merely  told  the  jury  that  the  word  "  town  "  was  to  be  under- 
stood in  its  ordinary  and  popular  sense,  the  court  held  that  this 
was  a  misdirection,  and  granted  a  new  trial  in  consequence.'  So, 
the  jury  will  not  be  allowed  to  examine  a  record,  for  the  purpose  of 
giving  their  opinion  as  to  what  word  has  been  written  above  an 
erasure;  for  the  inspection  of  a  record  is  within  the  peculiar  pro- 
vince of  the  court." 

§  46.  On  the  rule  of  law,  which  intrusts  the  judge  with,  th^  §3^. 
interpretation  of  written  instruments,  an  exception  has  IpjB^r^ 
engrafted  in  certain  cases,  when  the  writing  forms  the  STji,bject, 
of  an  indictment  or  an  action,  and  the  guilt  or  innpe?n(je  of. 
the  defendant  depends  upon  the  popular  meaning  of  th^,  language 
employed.  Thus,  on  a  prosecution  for  libel,  the  legislature,— after 
much  acrimonious  discussion  between  the  judges  on  the  pi^e  hand, 
and  the  advocates  of  popular  rights  on  the  other, ^— has  expressly 
determined,*  that  the  question  whether  the  partici^ar  publication, 


1  Elliott  V.  South  Devon  Rail.  Co.,  2  Ex.  R.  725 

2  R.  V.  Hucks,  1  Stark.  R.  522,  per  Ld.  ElleDboro,ugh. 

^  As  to  this  celehrated  dispute,  see,  in  support  9f  th^  claims  of  the  judges, 
R.  V.  Udall,  1  How.  St.  Tr.  1289;  R.  v.  Woodtall,  20  id.  913,  918,  920,  per 
Ld.  Mansfield;  5  Burr.  2661,  S.  C;  R.  v.  Dean  of- St.  Asaph,  21  How.  St.  Tr. 
1033,  per  Ld.  Mansfield:  and  in  support  of  the  rights  pf  the  jury,  R.  r.  Tutchin, 
14  id.  1128,  per  Ld.  Holt;  R.  v.  Owen,  18  id.  1223,  1227;  R.  r.  Dean  of  St. 
Asaph,  21  id.  922,  971,  arguments  of  R^t.  Erskine,  and  1040,  per  Willes,  J.; 
29  id.  49,  per  Ld.  Ellenborough ;  1  Woodfall's,  Junius,  14,  et  seq.,  163,  169-^ 
176.  As  to  the  proceedings  in  the  I^ouse  of  Lords  on  the  passing  of  the  Libel 
Act,  see  22  How.  St.  Tr.  294,  297. 

*  32  G.  3,  c.  60,  ^  1,  declares  and  enacts  that,  on  every  trial  of  an  indict- 
ment or  information  for  a  libel,  "  the  jury  sworn,  to  try  the  issue  may  give  a 
general  verdict  of  guilty  or  not  guilty  upon  the  whole  matter  put  in  issue 
upon  such  indictment  or  information;  and  shall  not  be  required  or  directed 
by  the  court  or  judge,  befpre  Avhom  such  indictment  or  information  shall  be 
tried,  to  find  the  defendant  or  defendants  guilty,  merely  on  the  proof  of  the 
publication  by  such  defendant  or  defendants  of  the  paper  charged  to  be  a 
libel,  and  of  the  sen.se  inscribed  to  the  same  in  such  indictment  or  informa- 
tion." §  2  provides,  that,  "on  every  such  trial,  the  court  or  judge,  before 
whom  such  indictment  or  information  shall  be  tried,  shall,*  according  to  their 
or  his  discretion,  give  their  or  his  opinion  and  directions  to  the  jury  on  the 


*  Semble,  the  word  "shall"  should  here  be  interpreted  as  if  the  word 
"may"  had  been  used.  See  per  Littledale,  J.,  in  Baylis  v,  Lawrence,  11 
A.  &  E.  925. 

5  LAW  OF  EVID. — V.  I.  (2931) 


66  LIDEL — TUREATEXING  LETTERS.  [PART   I. 

which  is  the  subject  of  inquiry,  is  of  a  libellous  character,  and  is 
calculated  to  injure  the  reputation  of  another,  by  exposing  him  to 
hatred,  contempt,  or  ridicule,  is  one  upon  which  the  jury  must 
exercise  their  judgment  and  pronounce  their  opinion,  as  a  question 
of  fact.  The  judge,  indeed,  as  a  matter  of  advice  to  them  in  de- 
ciding that  question,  may  give  his  own  opinion  respecting  the 
nature  of  the  publication,  but  is  not  bound  to  do  so  as  a  matter  of 
law.'  The  statute  here  noticed  is  strictly  applicable  to  criminal 
trials  only,  but,  being  a  declaratory  Act,  its  provisions  have  been 
adopted  in  civil  actions  for  libel,  and,  for  a  series  of  years,  it  has 
been  the  course  for  the  judge,— in  the  event  of  his  deciding  that 
the  words  complained  of  are  reasonably  cajKihle  of  bearing  the 
defamatory  meaning  ascribed  to  them  by  the  plaintiff," — first  to 
give  a  legal  definition  of  the  offence,  and  then  to  leave  the  jury  to 
determine  whether  the  writing  complained  of  falls  within  that 
definition  or  not.^  It  is  not,  however,  absolutely  necessary  that  the 
judge  should  explain  what  constitutes  a  libel,  but  he  may  leave  the 
whole  question  without  reserve  to  the  jury;*  though  if  they  find  a 
verdict  against  the  defendant,  either  on  an  indictment  or  an  action, 
the  court  will  arrest  the  judgment,  if  the  writing  on  the  face  of  it 
is  not  libellous.^ 

§  47.  On  indictments  for  writing  threatening  letters,^  the  re-  I  39 
spective  duties  of  the  judge  and  jury  are  not  very  clearly  defined. 
In  some  cases  the  jury  have  been  permitted,  upon  examination  of 
the  paper,  to  decide  for  themselves  whether  or  not  it  contained  a 
menace.^  In  other  cases,  the  question  appears  to  have  been  ex- 
clusively determined  by  the  court  ;^  while  on   a   few  occasions    the 

matter  in  issue  between  the  King  and  the  defendant  or  defendants,  in  like 
manner  as  in  other  criminal  cases."  §  3  provides,  that  a  jury  may  find  a 
special  verdict;  and  ^  4  reserves  to  defendants  a  right  to  move  in  arrest  of 
judgment. 

^  Per  Parke,  B.,  in  Parmiter  i'.  Coupland,  6  M.  &  W,  108. 

2  Hunt  V.  Goodlake,  43  L.  J.,  C.  P.  54;  Sturtr.  Blagg,  10  Q.  B.  906,  90R,  per 
Wilde,  C.  J.  ^  Parmiter  v.  Coupland,  6  M.  &  W.  107,   108. 

*  Baylis  v.  Lawrence,  11  A.  &  E.  920. 

*  Hearne  v.  Stowell,  12  A.  &  E.  719;  4  P.  (^  D.  G96,  S.  C;  Goldstein  v. 
Foss,  6  B.  &  C.  154;  Parmiter  v.  Coupland,  6  M.  &  W.  106,  per  Alderson,  B. 

fi  See  24  &  25  V.,  c.  96,  U  44,  46. 

'  E.  V.  Gird  wood,  1  Lea.  142;  2  East.  P.  C.  1120,  S.  C. 

«  R.  V.  Smith,  1  Den.  510,  512;  2  C.  &  Kir.  882,  884,  S.  C;  R.  v.  Pickford,  4 
C.  &  P.  227. 

(2932) 


CHAP.  Ill  ]  FOREIGN  LAWS.  07 

opinions  of  the  jury,  and  of  the  judges,  have  alternately  been  taken 
on  the  point.' 

§  48.  In  regard  to  foreign  laics,^  usages  and  cvistoms,  which  we  §  40 
have  already  seen^  cannot  be  judicially  noticed,  but  must  be 
proved  as  facts  in  each  particular  case,*  the  distinction  between 
the  functions  of  the  judge  and  the  jury  does  not  yet  appear  to  be 
very  clearly  defined.  It  would  seem,  however,  that  while  the 
existence  and  abstract  meaning  of  the  law  must,  in  general,  be 
determined  by  the  jury  on  the  testimony  of  the  skilled  witnesses,'' 
it  will  be  the  duty  of  the  court  to  decide,  first,  as  to  the  competent 
knowledge  of  the  witnesses  called  ;^  next,  as  to  the  admissibility 
of  the  documents  by  which  they  seek  to  refresh  their  memory  ;  and 
lastly,^  as  to  the  special  applicability  of  the  law,  when  proved,  to 
the  particular  matter  in  controversy.*  If,  indeed,  the  admissibility 
or  inadmissibility  of  certain  evidence  depends  on  the  existence 
or  interpretation  of  a  foreign  law,  the  proof  should  exclusively 
be  addressed  to  the  court,  as  in  other  cases  where  questions  re- 
specting the  admissibility  of  evidence  rests  upon  disputed  facts.' 
Perhaps,  also,  as  all  matters  of  law  are  properly  referable  to  the 
court,  and  as  the  object  of  the  proof  of  foreign  law  is  to  enable 
the  court  to  instruct  the  jury  respecting  its  bearing  on  the  case  in 
hand,  it  will  always  be  advisable  for  the  judge  to  assist  the  jury  in 
ascertaining  what  the  law  really  is.'" 


^  R.  V.  Robinson,  2  Lea.  755,  765;  R.  v.  Coatly,  15  Cox,  89,  Ir. 

'^  As  to  colonial  Imcs,  see  ante,  §  9.  ^  Ante,  ?  5. 

*  Although  a  point  of  foreign  law  may  have  been  proved  and  acted  upon  in 
one  court,  another  court  will  not  rely  upon  the  report  of  such  a  case,  but  will 
require  fresh  proof  of  the  law,  as  a  matter  of  fact,  on  each  particular  occasion; 
M'Cormick  r.  Garnett,  23  L.  J.,  Ch.,  717,  per  Knight-Bruce,  L.  J. ;  5  De  Gex 
M.  &  G.  278,  S.  C. 

*  R.  V.  Picton,  30  How.  St.  Tr.  536—540,  864—870. 

*  Bristow  V.  Sequeville,  5  Ex.  R.  275.     The  whple  of  this  subject   will   be 
discussed,  post,  U  1423—1425. 

"  See  Sussex  Peer.  Case,  11   CI.  &  Fin.    114—117;  Ld.  Nelson  v.  Ld.  Brid- 
port,  8  Beav.  527;  Church  v.  Hubbart,  2  Cranch,  187,  236—238. 

«  Story,  Confl.  |  638. 

8  Trasher  v.  Everhart,  3  Gill  &  John.   234,   242;  Story,  Confl.  ?  638,   n.  3; 
ante,  ?  23. 

'»  Story,    Confl.   §  638,  &  n.  3;  Mostyn  v.   Fabrigas,   1  Cowp.  R.   174,  per 
Ld.  Mansfield. 

(2933) 


68  FOREIGN  RULES  OF  EVIDENCE.  [pART  I. 

§  49.  Before  leaving  the  subject  of  foreign  law,  it  will  be  ^  41 
important  to  notice,  that  the  peculiar  rules  of  evidence  adopted 
in  one  country, — whether  established  by  the  practice  of  its  courts, 
or  enacted  by  the  legislature  for  the  government  of  those  courts, 
— cannot  be  permitted  to  regulate  the  proceedings  of  courts  in 
another  country,  when  transactions,  which  took  place  in  the 
former  country,  become  the  subject  of  investigation  in  the  latter.* 
The  law  of  evidence  is  the  lex  fori  which  governs  the  courts. 
"Whether  a  witness  is  competent  or  not, — whether  a  certain  matter 
requires  to  be  proved  by  writing  or  not,— whether  certain  evidence 
proves  a  certain  fact  or  not, — these,  and  the  like  questions,  must 
be  determined,  not  lege  loci  contractus,  but  by  the  law  of  the 
country  where  the  question  arises,  where  the  remedy  is  sought 
to  be  enforced,  and  where  the  court  sits  to  enforce  it."  The  case 
of  Clark  v.  Mullick,  which  was  decided  before  the  law  was  altered 
by  the  Evidence  Amendment  Act,  of  1851,^  affords  a  striking 
example  of  this  rule.  There,  the  assignees  of  a  bankrupt  under 
an  English  fiat  having  brought  an  action  in  Calcutta  against  a 
debtor  of  the  bankrupt,  and  the  pleas  having  put  in  issue  the 
'bankruptcy  and  the  assignment,  it  was  held  that  the  affirmative 
of  these  issues  could  not  be  proved  by  producing  copies  of  the 
proceedings  in  the  Bankruptcy  Court,  purporting  to  bear  the  seal 
of  that  court,  and  to  be  signed  by  the  Clerk  of  Enrolments;  for 
although,  by  the  statutes  relating  to  bankruptcy,  such  evidence 
was  sufficient  in  English  courts  of  justice,  it  was  not  at  that  time 
admissible  in  India,  as  the  Acts  did  not  extend  to  that  country.* 
Again,  although  by  the  Scotch  law,  all  instruments  prepared  and 
witnessed  according  to  the  provisions  of  the  Act  of  1081,  are 
probative  writs,  and  may  be  given  in  evidence  without  any  proof, 
yet  still,  if  it  were  required  to  prove  one  of  these  Scotch  instru- 
ments in  an  English  court,  its  mere  production  would  not  suffice, 
but  it  would  be   necessary  to  call  one   or  other   of   the    attesting 


1  Clark  V.  Mnlliok,  .3  Moo.  P.  C.  R.  279,  per  Ld.  Brongham. 
'^  Bain  v.  Whitehaven  &  Furness  June.  Kail.  Co.,  3  H.   of  L.  Cas.  19,    per 
Ld.  Brougham. 

3  14  &  15  v.,  c.  99,  §?  11  &  19. 
*  Clark  V.  Mullick,  3  Moo.  P.  C.  R.  252,  280. 

(2934) 


CHAP.  III.]  FOREIGN  RULES  OF  EVIDENCE.  69 

witnesses.^  The  case  of  Brown  v.  Thornton"  is  another  illnstra 
tion  of  this  rule.  There,  a  charter-party  had  been  entered  into 
at  Batavia;  and,  in  accordance  with  the  Dutch  law  which  prevails 
in  that  colony,  the  contract  had  been  written  in  the  book  of 
the  notary,  and  a  copy,  signed  and  sealed  by  him  and  counter- 
signed by  the  governor  of  Java,  had  been  delivered  to  each  of  the 
parties.  In  the  courts  of  Java,  the  contract  is  proved  by  producing 
the  notary's  book;  but  in  all  other  Dutch  courts  the  copies  are 
received  as  due  evidence  of  the  original.  Under  these  circum- 
stances, the  plaintiff  in  an  English  court  tendered  his  copy  of  the 
charter- party,  as  evidence  of  the  contract,  but  the  court  held  that 
it  was  inadmissible,  on  the  ground  that  English  judges  could  not 
adopt  a  rule  of  evidence  from  foreign  courts.  Several  other  cases 
could  be  cited  to  the  same  effect;^  and  in  all,  the  distinction  is 
recognised  between  the  cause  of  action,  which  must  be  judged  of 
according  to  the  law  of  the  country  where  it  originated,  and  the 
mode  of  proceeding,  including  of  course  the  rules  of  evidence, 
which  must  be  adopted  as  it  happens  to  exist  in  the  country  where 
the  action  is  brought.* 

§  49a.  Though  the  lex  fori  usually  governs  the  laws  of  evi- 
dence, a  remarkable  exception  to  this  doctrine  is  recognised  by  all 
courts- martial;  for  it  is  distinctly  enacted  by  the  Army  Act,  1881,^ 
first,  that  "  a  court-martial  under  this  Act  shall  ijot,  as  respects 
the  conduct  of  its  proceedings,  or  the  reception  or  rejigction  of 
evidence,  or  as  respects  any  other  matter  or  thing  whatsoever,  be 
subject  to  the  provisions  of  the  Indian  Evidence  Act,  1872,  or  to 
any  Act,  law,  or  ordinance  of  any  legislature  whatsoever,  other  than 


^  Yates  V.  Thompson,  3  CI.  &  Fin,  577,  580,  etseq.,  per  Ld.  Brougham. 

=*  6  A.  &  E.  185. 

^  Trimbey  v.  Vignier,  1  Bing.  N.  C.  151 ;  Huber  v.  Steiner,  2  Bing.  N.  C. 
202;  British  Linen  Co.  v.  Drummond,  10  B.  &  C.  903;  Appleton  v.  Ld. 
Braybrook,  2  Stark  R.  6;  6  M.  &  Sel.  34,  S.  C;  Black  :v.  Braybrook, 
2  Stark.  R.  7;  6  M.  &  Sel,  39,  S.  C;  Don.  v.  Lippman,  5  CI.  &  Fin.  1,  13— 
17;  Leroux  v.  Brown,  12  Com.  B.  801;  Finlay  v.  Finlay,  31  L.  J.,  Pr.  & 
Mat.  149. 

*  Mostyn  v.  Fabrigas,  1  Smith,  L.  C.  641.  See  also  Story,  Confl.  U  556, 
et  seq.  &  629—636. 

M4  &  45  v.,  c.  58,  §|  127  &  128. 
"^  (2935) 


70  RULES  OF  EVIDENCE  ON  COURTS-MARTIAL.  [pART  I. 

the  Parliament  of  the  United  Kingdom;"  and  next,  that  "the 
rules  of  evidence  to  be  adopted  in  proceedings  before  courts- 
martial  shall  be  the  same  as  those  which  are  followed  in  civil 
courts  in  England;  and  no  person  shall  be  required  to  answer 
any  question  or  to  produce  any  documents,  which  he  could  not  be 
required  to  answer  or  produce  in  similar  proceeding  before  a  civil 
court." 


(2936) 


CHAP.  IV.]  DISPOSITION  TO  BELIEF  INSTINCTIVE.  71 


CHAPTEK  IV. 

THE  GROUNDS  OF  BELIEF. 

§  50.'  Wf  proceed  now  to  a  brief  consideration  of  the  General  «  43 
Nature  and  Principles  of  Evidence.  No  inquiry  is  here  proposed 
into  the  origin  of  human  knowledge  ;  it  being  assumed,  on  the 
authority  of  approved  writers,  that  all  that  men  know  is  referable, 
in  a  philosophical  view,  to  perception  and  reflection.  But,  in  fact, 
the  knowledge  acquired  by  an  individual  through  his  own  per- 
ception and  reflection,  is  but  a  small  part  of  what  he  possesses  ; 
much  of  what  we  are  content  to  regard  and  act  upon  as  knowledge, 
having  been  acquired  through  the  perception  of  others.^  It  is  not 
easy  to  conceive,  that  tlie  Supreme  Being,  whose  wisdom  is  so 
conspicuous  in  all  His  works,  constituted  man  to  believe  only 
upon  his  own  personal  experience  ;  since,  in  that  case,  the  world 
could  neither  be  governed  nor  improved  ;  and  society  must  remain 
in  the  state  in  which  it  was  left  by  the  first  generation  of  men. 
On  the  contrary,  during  the  period  of  childhood  we  believe 
implicity  almost  all  that  is  told  us  ;  and  we  thus  are  furnished 
with  information,  which  we  could  not  otherwise  obtain,  but  which  v 
is  necessary  at  the  time  for  our  present  protection,  or  as  the 
means  of  future  improvement.  This  disposition  'to  confide  in 
the  veracity  of  others,  and  to  believe  what  they  say,  may  be  termed 
instinctive.  At  an  early  period,  however,  we  begin  to  find  that  of 
the  things  told  to  us  some  are  not  true;  and  thus  our  implicit 
reliance  on  the  testimony  of  others  is  weakened  ;  first,  in  regard 
to  particular  things,  in  which  we  have  been  deceived  ;  then,  in 
regard  to  persons,  whose  fasehoods  we  have  detected  ;  and,  as 
these  instances  multiply  upon  us,  we  gradually  become  more  and 
more  distrustful  of  statements  made  to  us,  and  learn  by  experience 
the  necessity  of   testing  them   by  certain   rules.^     "Confidence," 

^  Gr.  Ev.  §  7,  nearly  verbatim.  »  Id.  Part  2,  I  3,  p.  73. 

^  Abercr,  on  Intell.  Pow.,  Part  p.  42. 

(2937) 


72  INSTINCTIVE  TENDENCY  TO  BELIEF.  [pART  I. 

exclaimed  Lord  Chatham,  on  a  memorable  occasion,  "  is  a  plant  of 
slow  growth  in  an  aged  bosom  ;"  and  indeed,  it  may  be  generally 
observed,  that,  as  our  ability  to  obtain  knowledge  by  other  means 
increases,  our  instinctive  and  indiscriminate  reliance  on  testimony 
diminishes,  by  yielding  to  a  more  rational  belief.'     Still,  in  every 

1  *Gamb.  Guide,  87;  M'Kinnon,  Phil,  of  Ev.  40.  This  subject  is  treated 
more  hirgely  by  Dr.  Eeid  in  his  profound  Inquiry  into  the  Human  Mind,  c.  6, 
§  24,  pp.  19G,  197,  of  his  collected  Works,  in  these  words: — "The  wise  and 
beneficient  Author  of  NatujCv  ^yho  intended  that  we  should  be  social  creatures, 
and  that  we  should  receive  the  greatest  and  most  important  part  of  our  know- 
ledge by  the  information  of  others,  hath,  for  these  purposes,  implanted  in  our 
nature  two  principles,  that  tally  with  each  other.  The  first  of  these  principles 
is  a  propensity  to  speak  truth,  and  to  use  the  signs  of  language,  so  as  to  convey 
our  real  sentiments.  This  principle  has  a  powerful  operation,  even  in  the 
greatest  liars  ;  for  where  they  lie  once  they  speak  truth  a  hundred  times. 
Truth  is  always  uppermost,  and  is  the  natural  issue  of  the  mind.  It  requires  no 
art  of  training,  no  inducement  or  temptation,  but  only  that  we  yield  to  a  natural 
impulse.  Lying,  on  the  contrary,  is  doing  violence  to  our  nature;  and  is  never 
practised,  even  by  the  worst  men,  without  some  temptation.  Speaking  truth 
is  like  using  our  natural  food,  which  we  would  do  from  appetite,  although  it 
answered  no  end  ;  but  lying  is  like  taking  physic,  which  is  nauseous  to  the 
taste,  and  which  no  man  takes  but  for  some  end,  which  he  cannot  otherwise 
attain.  If  it  should  be  objected,  that  men  may  be  influenced  by  moral  or 
political  considerations  to  speak  truth,  and  therefoi-e,  that  their  doing  so  is  no 
proof  of  such  an  original  principle  as  W'e  have  mentioned  ;  I  answer,  first,  that 
moral  or  political  considerations  can  have  no  influence,  until  we  arrive  at  years 
of  understanding  and  reflection  ;  and  it  is  certain  from  experience,  that  chil- 
dren keep  to  truth  invariably,  before  they  are  capable  of  being  influenced  by 
such  considerations.  Secondly,  when  we  are  influenced  by  moral  or  political 
considerations,  we  must  be  ctonscious  of  that  influence,  and  capable  of  perceiving 
it  upon  reflection.  Now,  when  I  reflect  upon  my  actions  most  attentively,  I 
am  not  conscious,  that  in  speaking  truth  I  am  influenced  on  ordinary  occasions 
by  any  motive  moral  or  political.  I  find,  that  truth  is  always  at  the  door  of 
my  lips,  and  goes  forth  spontaneouslj-,  if  not  held  back.  It  requires  neither 
good  nor  bad  intention  t;>  brirtg  it  forth,  but  only  that  I  be  artless  and  undc- 
signing.  There  may  indeed  be  temptations  to  falsehood,  which  would  be  too 
strong  for  the  natural  principle  of  veracity,  unaided  by  principles  of  honour 
or  virtue  ;  but  where  there  is  no  such  temptation,  we  speak  truth  by  instinct ; 
and  this  instinct  is  the  principle  I  have  been  explaining.  By  this  instinct,  a 
real  connection  is  formed  between  our  words  and  our  thoughts,  and  thereby  the 
former  become  fit  to  be  signs  of  the  latter,  which  they  could  not  otherwise  be. 
And  although  this  connection  is  broken  in  every  instance  of  lying  and  equivo- 
cation, yet  these  instances  being  comparatively  few,  the  authority  of  human 
testimony    is  only  weakened  by  them,  but  not  destroyed.     Another  original 


*  Gr.  Ev.  §  7,  n.  verbatim. 
(2938) 


CHAP.    IV.]  INSTINCTIVE  TENDENCY  TO  BELIEF.  73 

period  of  life  aod  in  every  state  of  intellectual  culture,  man  is 
instinctively  more  prone  to  believe  than  to  disbelieve  the  testimony 
of  others,  and  this  disposition  towards  credulity  may  be  regarded 

priuciple,  implanted  iu  us  by  the  Supreme  Being,  is  a  disposition  to  confide  in 
the  veracity  of  others,  and  to  believe  what  they  tell  us.  This  is  the  counter, 
part  to  the  former  :  and  as  that  may  be  called  the  principle  of  veracity,  we 
shall,  for  want  of  a  proper  name,  call  this  the  principle  of  credulity.  It  is 
unlimited  in  children  until  they  meet  with  instances  of  deceit  and  lalsehood; 
and  it  contains  a  very  considerable  degree  of  strength  through  life.  If  nature 
had  left  the  mind  of  the  speaker  in  equilibrio,  without  any  inclination  to  the 
side  of  truth  more  than  to  that  of  falsehood,  children  would  lie  as  often  as  they 
speak  truth,  until  reason  was  so  far  ripened,  as  to  suggest  the  imprudence  of 
lying,  or  conscience,  as  to  suggest  its  immorality.  And  if  nature  had  left  the 
mind  of  the  hearer  in  equilibrio,  without  any  inclination  to  the  side  of  belief 
more  than  to  that  of  disbelief,  we  should  take  no  man's  word,  until  we  had 
positive  evidence  that  he  spoke  truth.  His  testimony  would,  in  this  case,  have 
no  more  authority  than  his  dreams,  which  may  be  true  or  false:  but  no  man 
is  disposed  to  believe  them,  on  this  account,  that  they  were  dreamed.  It  is 
evident,  that,  in  the  matter  of  testimony,  the  balance  of  human  judgment  is  by 
nature  inclined  to  the  side  of  belief;  and  turns  to  that  side  of  itself,  when  there 
is  nothing  put  into  the  opposite  scale.  If  it  was  not  so,  no  proposition,  that  is 
uttered  in  discourse  would  be  believed,  until  it  was  examined  and  tried  by 
tea-son:  and  most  men  would  be  unable  to  find  reasons  for  believing  the  thou- 
sandth part  of  what  is  told  them.  Such  distrust  and  incredulity  would  deprive 
us  cf  the  greatest  benefits  of  society,  and  place  us  in  a  worse  condition  than 
that  of  savages.  Children,  on  this  supposition,  would  be  absolutely  incredulous, 
and  therefore  absolutely  incapable  of  instruction;  those  who  had  little  know- 
ledge of  human  life,  and  of  the  manners  and  characters  of  men  would  be  in 
the  next  degree  incredulous;  and  the  most  credulous  men  would  be  those  of 
greatest  exi^erience,  and  of  the  deepest  penetration;  because,  in  many  icases, 
they  would  be  able  to  find  good  reasons  for  believing  testimony,  which  the 
weak  and  the  ignorant  could  not  discover.  In  a  word,  if  credulity  were  the 
effect  of  reasoning  and  experience,  it  must  grow  up  and  gather  strength,  in  the 
same  proportion  as  reason  and  experience  do.  But  if  it  is  the  gift  of  nature,  it 
will  be  strongest  in  childhood,  and  limited  and  restrained  by  experience;  and 
the  most  superficial  view  of  human  life  shows,  that  the  last  is  really  the  case, 
and  not  the  first.  It  is  the  intention  of  nature,  that  we  should  be  carried  in 
arms  before  we  are  able  to  walk  upon  our  legs;  and  it  is  likewise  the  intention 
of  nature,  that  our  belief  should  be  guided  by  the  authority  and  reason  of 
others,  before  it  can  be  guided  ])y  our  own  reason.  The  weakness  of  the  infont, 
and  the  natural  afiection  of  tlie  mother,  plainly  indicate  the  former;  and  the 
natural  credulity  of  youth  and  authority  of  age  as  plainly  indicate  the  latter. 
The  infant,  by  proper  nursing  and  care,  acquires  strength  to  walk  without 
support.  Reason  hath  likewise  her  infxncy,  when  she  must  be  carried  in  arms; 
then  she  leans  entirely  upon  authority,  by  natural  instinct,  as  it  she  was 
conscious  of  her  own  weakness;  and  without  this  support,  she  becomes 
vertiginous.  When  brought  to  maturity  by  proper  culture,  she  begins  to  feel 
her  own  strength,  and  leans  less  upon  the  reason  of  others;  she  learns  to 
suspect  testimony  in  some  cases,  and  to  disbelieve  it  in  others;  and  sets  bounds 

(2939) 


74       FAITH  IX  TESTIMONY  AS  SANCTIONED  BY  EXPERIENCE.     [pART    I. 

as  a  fundamental  principle  of  our  moral  nature,  implanted  in  us 
by  the  Almighty  for  the  wisest  and  most  beneficent  purposes.  As 
such  it  constitutes  the  general  basis  upon  which  all  evidence  may 
be  said  to  rest. 

§  51.'  Subordinate  to  this  paramount  and  original  principle,  it  §  43 
may,  in  the  second  place,  be  observed,  that  evidence  rests  upon  our 
faith  in  human  testimony,  as  sanctioned  by  experience;  that  is, 
upon  the  generally  experienced  truth  of  the  statements  on  oath  of 
men  of  integrity,  having  capacity  and  opportunity  for  observation? 
and  without  apparent  influence  from  passion  or  interest  to  pervert 
the  truth.  This  belief  is  strengthened  by  our  knowledge  of  the 
narrator's  reputation  for  veracity  and  intelligence,  by  the  absence  of 
conflicting  testimony,  and  by  the  presence  of  that  which  is  corrobo- 
rating and  cumulative.^ 

§  52.  It  is  obvious,  that,  in  the  hasty  progress  of  a  trial  at  Nisi  §  44 
Prius,  it  is  frequently  difiicult,  and  sometimes  impossible,  to 
ascertain,  with  anything  like  certainty,  what  characters  the  wit- 
nesses respectively  deserve  for  honesty  and  intelligence,  and  how 
far  they  are  actuated  by  interested,  malignant,  or  other  improper 
motives.     On  these  heads  considerable  doubts  must  almost  always 

to  that  authority  to  which  she  was  at  first  entirely  subject.  But  still,  to  the 
end  of  life,  she  finds  a  necessity  of  borrowing  light  from  testimony,  where  she 
has  none  within  herself,  and  of  leaning  in  some  degree  upon  the  reason  of  others, 
where  she  is  conscious  of  her  own  imbecility.  And,  as  in  many  instances 
Eeason,  even  in  her  maturity,  borrows  aid  from  testimony;  so  in  others  she 
mutually  gives  aid  to  it^  and  strengthens  its  authority.  For,  as  we  find  good 
reason  to  reject  testimony  in  some  cases,  so  in  others  we  find  good 
reason  to  rely  upon  it  with  perfect  security  in  our  most  important  concerns. 
The  character,  the  number,  and  the  disinterestedness  of  witnesses,  the  impossi- 
bility of  collusion,  and  the  incredibility  of  their  concurring  in  their  testimony 
without  collusion,  may  give  an  irresistible  strength  to  testimony,  compared  to 
which  its  native  and  intrinsic  authority  is  very  inconsiderable." 

^  Gr.  Ev.  §  10,  nearly  verbatim. 

2  Archbishop  Whately,  in  his  admirable  jeu  d'esprit,  entitled  "Historic 
Doubts  relative  to  Napoleon  Buonaparte,"  has  clearly  stated  the  main  tests  of 
human  veracity.  "  I  suppose,"  says  he,  "it  will  not  be  denied  that  the  three 
following  are  among  the  most  important  points  to  be  ascertained,  in  deciding 
on  the  credibility  of  witnesses;  first,  whether  they  have  the  means  of  gaining 
correct  information;  secondly,  whether  they  have  any  interest  in  concealing 
truth,  or  propagating  falsehood;  and,  thirdly,  whether  they  agree  in  their 
testimony."— P.  14,  6th  ed. 

(2940) 


CHAP.  IV.]     DEMEANOUR  OF  WITNESSES — TESTS  OF  TRUTH.  75 

exist ;  although  a  rigid  cross-examination,  when  skilfully  applied,' 
will  certainly  throw  much  light  upon  the  subject  ;  and  a  careful 
attention  to  the  demeanour  of  the  witness  will  furnish  a  no  less 
valuable  guide.  Thus,  while  simplicity,  minuteness,  and  ease 
are  the  natural  accompaniments  of  truth,  the  language  of  witnesses 
coming  to  impose  upon  the  jury  is  usually  laboured,  cautious,  and 
indistinct.^  So,  when  we  find  a  witness  over  zealous  on  behalf  of 
his  party;  exaggerating  circumstances;  assuming  an  air  of  bluster 
and  defiance  f  answering  without  waiting  to  hear  the  question  ; 
forgetting  facts  where  he  would  be  open  to  contradiction;  minutely 
remembering  others,  which  he  knows  cannot  be  disputed  ;*  reluc- 
tant in  giving  adverse  testimony;  replying  evasively  or  flippantly;'^ 
pretending  not  to  hear  the  question,  for  the  purpose  of  gaining 
time  to  consider  the  effect  of  his  answer;  affecting  indifference  ; 
or,  often  vowing  to  God,®  and  protesting  his  honesty;  we  have  indi- 
cations, more  or  less  conclusive,  of  insincerity  and  falsehood.^  On 
the  other  hand,  in  the  testimony  of  witnesses  of  truth  there  is  a 
calmness  and  simplicity ;  a  naturalness  of  manner ;  an  unaffected 
readiness  and  copiousness  of  detail,  as  well  in  one  part  of  the 
narrative  as  another  ;  and  an  evident  disregard  of  either  the  facility 
or  difficulty  of  vindication  or  detection.^ 

§  53.  Besides  these  tests  of  truth,  which  are  obviously  of  value    §  45 
in  fixing  what  amount  of  credit  is  due  to  each  individual  witness, 

^  In  the  great  Tichborne  trial  of  1871,  the  cross-examination  of  Mr.  Baigent 
by  Mr.  Hawkins  should  be  carefully  studied,  as  being  the  best  modern  example 
of  forensic  ability  in  that  line. 

2  Channing,  Ev.  of  Christ.,  3rd  vol.  of  Works,  356. 
'  "Asseveration    blustering  in  your  face 

Makes  contradiction  such  a  hopeless  case." 

CowPEE,  Conversation. 

*  "For,  when  we  risk  no  contradiction, 

It  prompts  the  tongue  to  deal  in  fiction." 

Gay's  Fables,  Part  I.,  Fable  x. 

*  "All  persons  who  have  been  accustomed  to  see  witnesses  in  a  court  of 
justice  know,  that  those  "who  are  stating  falsehoods  are  extremelj'  apt  to  give 
flippant  and  impertinent  answers."  Per  Mr.  Brougham  on  the  Queen's  trial  ; 
1  Ld.  Br.  Rp.  159. 

®  "  And  even  when  sober  truth  prevails  throughout, 
They  swear  it,  till  affirmance  breeds  a  doubt. ' ' 

COWPER,  Conversation. 
^  1  St.  Ev.  547.  8  Greenl.  on  Test,  of  Evang.  ^  40. 

(2941) 


76  TESTIMONY  OF  ENSLAVED  PEOPLE — OF  WOMEN.         [PART  I. 

certain  general  rules  must  be  borne  in  mind,  as  tending  to  shadow 
forth,  rather  than  define,  the  relative  merits  of  particular  classes  of 
witnesses.  Thus,  it  has  been  justly  observed,  that  a  "  propensity 
to  lying  has  been  always,  more  or  less,  a  peculiar  feature  in  the 
character  of  an  enslaved  people, — accustomed  to  oppression  of  every 
kind,  and  to  be  called  upon  to  render  strict  account  of  every  trifle 
done,  not  according  to  the  rules  of  justice,  but  as  the  caprice  of 
their  masters  may  suggest ; — it  is  little  to  be  wondered  at,  if  a  lie 
is  often  resorted  to  as  a  supposed  refuge  from  punishment,  and  that 
thus  an  habitual  disregard  is  engendered."'  This  passage  is  cited, 
as  accounting  in  some  measure  for  the  lamentable  neglect  of  truth, 
which  is  evinced  by  most  of  the  nations  of  India,  by  the  subjects  of 
the  Czar,  and  by  many  of  the  peasantry  in  Ireland.^ 

§  54.  Again,  as  the  chief  motive  for  exaggeration  springs  from  ^  46 
an  innate  vain  love  of  the  marvellous,^  and  as  this  love,  like  all 
other,  is  most  remarkable  in  the  softer  sex,*  a  prudent  man  will, 
in  general,  do  well  to  weigh  with  some  caution  the  testimony  of 
female  ivitnesses.  This  care  is  all  the  more  necessary,  in  conse- 
quence of  the  extensive  and  dangerous  field  of  falsehood  which  is 
opened  up  by  mere  exaggeration;  for,  as  truth  is  made  the  ground- 
work of  the  picture,  and  fiction  lends  but  light  and  shade,  it  often 
requires  more  patience  and  acuteness  than  most  men  possess,  or 
are  willing  to  exercise,  to  distinguish  fact  from  fancy,  and  to  repaint 
the  narrative  in  its  proper  colours.^     In  short,  the  intermixture  of 


'  Bp.  of  Tasmania's  Lect.  on  Christ.  Catechism,  519. 

^  The  Antiquarian  loves  to  trace  the  Irish  blood  from  a  Carthaginian  stock. 
^  Bp.  of  Tasmania's  Lecture  on  Christ.  Catechism,  522. 

*  The  woman  of  Samaria  affords  a  striking  example  of  this  proneness  to  ex- 
aggerate. When  our  Saviour  told  her  she  had  had  five  husbands,  she  went 
into  the  city,  saying,  "Come,  see  a  man,  which  told  me  all  things  that  ever  I 
did.''     4th  ch.  of  St.  John,  v.  29. 

^  Bp.    of  Tasmania's   Lect:   on    Christ.    Catechism,   522.     The  difficulty  of 
detecting  falsehood  which  has  been  engrafted  on  truth  has  been  noticed  by 
Alfred  Tennyson,  in  his  charming  poem  of  the  "  Grandmother  :" — 
''and  the  parson  .    .    .  said  likewise, 
That  a  lie  which  is  half  a  truth  is  ever  the  blackest  of  lies, 
That  a  lie  which  is  all  a  lie  may  be  met  and  fought  with  outright, 
But  a  lie  which  is  part  a  truth  is  a  harder  mattier  to  fight. ' ' 
Mr.    Brougham  commented    on  the  same  subject  with  great  ability  on  the 

(2942) 


CHAP.    IV.]  TESTI3I0NY  OF  WOMEN — OF  CHILDREN.  77 

truth  disarms  the  suspicion  of  the  candid,  and  sanctions  the  ready 
belief  of  the  malevolent.'  Having  pointed  out  this  proneness  to 
exaggerate  as  a  feminine  weakness,  it  is  only  just  to  add,  that  in 
other  respects,  the  testimony  of  women  is  at  least  deserving  of 
equal  credit  to  that  of  men.  In  fact,  they  are  in  some  respects  far 
superior  witnesses;  for  first,  they  are,  in  general,  closer  observers 
of  events  than  men;  next,  their  memories,  being  less  loaded 
with  matters  of  business,  are  usually  more  tenacious;  and  lastly, 
they  often  possess  unrivalled  powers  of  simple  and  unafPected 
narration." 

§  55.  Sir  William  Blackstone  appears  to  have  thought,^  that  q  ^j 
less  credit  was  due  to  the  testimony  of  a  child  than  to  that  of  an 
adult;  but  reason  and  experience  scarcely  waiTant  this  opinion. 
In  childhood,  the  faculties  of  observation  and  memory  are  usually 
more  active  than  in  after  life,  while  the  motives  of  falsehood  are 
then  less  numerous  and  less  powerful.  The  inexperience  and 
artlessness,  which,  in  a  great  measure,  must  accompany  tender 
years,  render  a  child  incapable  of  sustaining  consistent  perjury, 
while  the  same  causes  operate  powerfully  in  preventing  his  true 
testimony  from  being  shaken  by  the  adroitness  of  counsel.  Not 
comprehending  the  drift  of  the  questions  put  to  him  in  cross- 
examination,  his  only  course  is  to  answer  them  according  to  the 


Queen's  trial.  "If  an  individual,"  saidlie,  "  were  to  invent  a  story  entirely, — 
if  he  were  to  form  it  oomplctelj^  of  falsehoods,  the  result  would  be  his  inevit- 
able detection ;  but  if  he  build  a  structure  of  falsehood  on  the  foundation  of 
a  little  truth,  he  may  raise  a  tale  which,  with  a  good  deal  of  drilling,  may  put 
an  honest  man's  life,  or  an  illustrious  Princess'  reputation,  in  jeopardy. ' '  1  Ld. 
Br.  Sp.  14.7.  And,  again  :  "  The  most  efiectual  way,  because  the  safest,  of 
laying  a  plot,  is  not  to  swear  too  hard,  is  not  to  swear  too  much,  or  to  come  too 
directly  to  the  point;  but  to  lay  the  foundation  in  existing  facts  and  real  cir- 
cumstances,— to  knit  the  false  with  the  true, — to  interlace  reality  with  fiction, 
— to  build  the  fanciful  fabric  upon  that  which  exists  in  nature, — and  to  escape 
detection  by  taking  most  especial  care,  as  they  have  done  here,  never  to  have 
two  witnesses  to  the  same  facts,  and  also  to  make  the  facts  as  moderate,  and 
as  little  offensive,  as  possible."     1  Ld.  Br.  Sp.  21.5. 

'  Bp.  of  Tasmania's  Lect.  on  Christ.  Catechism,  522. 

^  Take,  for  instance,  the  Letters  of  Madame  de  Sevigne,  or*  Lady  Mary 
Wortley  Montagu,  which  can  only  be  rivalled,  if  at  all,  by  those  of  the 
effeminate  Ld.  Orford.      , 

3  4  Bl.  Com.  214. 

(2943) 


78  TESTIMONY  OF  FOREIGNERS — OF  POLICEJIEN.  [pART    I. 

fact.  Thus,  if  be  speak  falsely,  he  is  almost  inevitably  detected; 
but  if  he  be  the  witness  of  truth,  he  avoids  that  imputation  of 
dishonesty,  which  sometimes  attaches  to  older  witnesses,  who, 
though  substantially  telling  the  truth,  are  apt  to  throw  discredit 
on  their  testimony,  by  a  too  anxious  desire  to  reconcile  every 
apparent  inconsistency.  , 


§  56.  The  testimony  of  foreigners  and  of  others,  who,  living  out  §  48 
of  the  jurisdiction,  are  brought  from  a  distance  to  the  place  of  trial, 
often  requires  to  be  scrutinised  with  more  than  common  caution; 
for,  as  such  persons  speak  before  a  tribunal,  which  ordinarily  knows 
no  more  of  them  than  they  care  for  it,  whose  threat  they  have  no 
reason  to  fear,  and  whose  good  opinion  they  utterly  disregard,  they 
are  obviously  far  less  likely  than  witnesses  living  on  the  spot  to  be 
influenced  by  the  dread  of  having  their  falsehoods  exposed.*  The 
detection  of  perjury,  in  their  case,  involves  but  little  loss  of  char- 
acter, and  no  real  danger  of  punishment.  A  dishonest  foreigner, 
too,  who  has  attained  a  tolerable  knowledge  of  the  language,  has 
always  this  advantage  over  a  native,  that  he  may  modestly  conceal 
his  proficiency  as  a  linguist,  and  avail  himself  of  the  assistance  of  an 
interpreter,  which  gives  him  an  opportunity  of  preparing  with  due 
caution  his  answer  to  any  inconvenient  question,  while  the  inter- 
preter, all  unheeded,  is  performing  the  superfluous  part  of  furnish- 
ing him  with  a  needless  translation." 


§  57.  With  respect  to  policemen,  constahles,  and  others  employed  ^  49 
in  the  suppression  and  detection  of  crime,  their  testimony  against 
a  prisoner  should  usually  be  watched  with  care;  not  because  they 
intentionally  pervert  the  truth,  but  because  their  professional  zeal,  fed 
as  it  is  by  an  habitual  intercourse  with  the  vicious,  and  by  the  frequent 
contemplation  of  human  nature  in  its  most  revolting  form,  almost 
necessarily  leads  them  to  ascribe  actions  to  the  Avorst  motives,  and  to 
give  a  colouring  of  guilt  to   facts  and  conversations,   which  are, 


^  Per  Mr.   Brougham  on   the  Queen's  trial.     1  Ld.   Br.    Sp.   126.     See  id 
p.  241. 

"^  Id.  168.     See  R.  v.  Burke,  8  Cox,  44,  47,  cited  post,  ^  1444. 

(2944) 


CHAP.  IV.]  SKILLED  WITNESSES — COINCIDENCES  IN  TESTIMONY.     79 

perhaps,  in  themselves  consistent  with  perfect  rectitude.'  "That 
all  men  are  guilty,  till  they  are  proved  to  be  innocent,"  is  naturally 
the  creed  of  the  police:  but  it  is  a  creed  which  linds  no  sanction  in 
a  court  of  justice.  As  a  set-ofP  to  this  tendency  on  the  part  of  the 
police  to  regard  conduct  in  the  worst  point  of  view,  it  must  in 
fairness  be  stated,  that,  in  every  other  respect,  the  general  mode  in 
which  they  give  their  testimony  is  unimpeachable;  and  that,  except 
when  blinded  by  prejudice,  they  may  well  challenge  a  comparison 
with  any  other  body  of  men  in  their  rank  of  life,  as  upright,  intel- 
ligent, and  trustworthy  witnesses. 

§  58.  Perhaps  the  testimony  which  least  deserves  credit  with  a  §  50 
jury  is  that  of  skilled  tcitnesses.  These  gentlemen  are  usually 
required  to  speak,  not  to  facts,  but  to  opinions;  and  when  this  is 
the  case,  it  is  often  quite  surprising  to  see  with  what  facility,  and 
to  what  an  extent,  their  views  can  be  made  to  correspond  with  the 
wishes  or  the  interests  of  the  parties  who  call  them.  They  do  not, 
indeed,  wilfully  misrepresent  what  they  think:  but  their  judgments 
become  so  warped  by  regarding  the  subject  in  one  point  of  view, 
that,  even  when  conscientiously  disposed,  they  are  incapable  of  ex- 
pressing a  candid  opinion.  Being  zealous  partisans,  their  Belief 
becomes  synonymous  with  Faith  as  defined  by  the  Apostle,^  and  it 
too  often  is  but  "the  substance  of  things  hoped  for,  the  evidence  of 
things  not  seen."  To  adopt  the  language  of  Lord  Campbell, 
"skilled  witnesses  come  with  such  a  bias  on  their  minds  to  support 
the  cause  in  which  they  are  embarked,  that  hardly  any  weight 
should  be  given  to  their  evidence."^ 

§  59.  A  third  ground  of  the  credibility  of  evidence  is  afforded  ^  51 
by  the  exercise  of  reason  upon  the  effect  of  coincidences  in  the  tes- 
timony of  independent  witnesses.  These  coincidences,  when  suffi- 
ciently numerous,  and  presented  in  the  shape  of  undesigned  corres- 
pondency, or  incidental  allusion,  necessarily  produce  a  prodigious 
effect  in  enforcing  belief;  because,  if  the  witnesses  had  concerted  a 
plot,  the  coincidences  would  almost  inevitably  have  been  converted 


'  See  post,  ^  G8.  ^  Ep.  to  the  Hebrews,  c.  xi.,  v.  1. 

'  Tracy  Peer.  10  CI.  &  Fin.  191.     See  post,  ^8. 

(2945) 


80  COINCIDENCES  IN  TESTIMONY.  [pART  I. 

by  cross-examination  into  contradictions,'  and  if  collusion  is  ex- 
cluded, and  no  deception  has  been  practiced  on  the  witnesses,  the 
harmony  in  their  evidence  cannot  be  explained  upon  any  other 
hypothesis  than  that  the  statements  severally  made  are  tiue.  Each 
witness  taken  singly  may  be  notorious  for  lying;  but  the  chances 
against  their  all  agreeing  by  accident  in  the  same  lie  may  be  so 
great,  as  to  render  the  agreement  morally  impossible."  On  this 
subject  it  has  been  profoundly  remarked,  that  "in  a  number  of  con- 
current testimonies,  where  there  has  been  no  previous  concert,  there 
is  a  probability  distinct  from  that  which  may  be  termed  the  sum  of 
the  probabilities  resulting  from  the  testimonies  of  the  witnesses;  a 
probability  which  would  remain,  even  though  the  witnesses  were  of 
such  a  character  as  to  merit  no  faith  at  all.  This  probability  arises 
purely  from  the  concurrence  itself.  That  such  a  concurrence  should 
spring  from  chance,  is  as  one  to  infinite;  that  is,  in  other  words, 
morally  impossible.  If,  therefore,  concert  be  exclude^d,  there  re- 
mains no  cause  but  the  reality  of  the  fact."^ 


§  60.  So,  also,  Lord  Mansfield  justly  observed  on  one  occasion,  g  5] 
"It  is  objected  that  the  books  [Keble's  and  Freeman's  Reports] 
are  of  no  authority;  but  if  both  the  reporters  were  the  worst  that 
ever  reported,  if  substantially  they  report  a  case  in  the  same  way, 
it  is  demonstration  of  the  truth  of  what  they  report,  or  they  could 
not  agree."*  The  word  "substantially"  here  used  is  highly  im- 
portant, with  a  view  to  the  question  of  collusion,  since  it  is  scarcely 
possible  that  several  independent  witnesses  should  tell  precisely  the 
same  tale,  without  any  variation.  Dr.  Paley,  who  has  treated  this 
subject  with  great  ability  in  his  Evidences  of  Christianity,  states, 


'  On  this  subject  Mr.  Brougham  thus  expressed  himself  on  the  Queen's 
trial: — "Why  were  there  never  two  witnesses  to  the  same  fact?  Because  it  is 
dangerous;  because,  ■when  you  are  making  a  plot,  you  should  have  one  witness 
to  a  fact,  and  another  to  a  confirmation;  have  some  things  true,  which  unim- 
peachable evidence  can  prove;  other  things  fabricated,  without  which  the  true 
would  be  of  no  avail, — but  avoid  calling  two  witnesses  to  the  same  thing  at 
the  same  time,  because  the  cross-examination  is  extremely  likely  to  make 
them  contradict  each  other."     1  Ld.  Br.  Sp.  215. 

-  Aber.  on  Intell.  Pow.,  Part  2,  §  3,  p.  91. 

^  Campbell's  Philos.  of  Rhetoric,  ch.  v.,  b.  1,  par.  3,  p.  125;  Whately's 
Ehetoric,  Part  1,  ch.  2,  §  4,  pp.  58,  59.  *  R.  v.  Genge,  1  Covrp.  16. 

(2946) 


CHAP.  IV.]  PKOB ABILITY  OF  EVIDENCE.  81 

that  "  the  usual  character  of  human  testimony  is  substantial  truth 
under  circumstantial  variety.  This  is  what  the  daily  experience  of 
courts  of  justice  teaches.  "When  accounts  of  a  transaction  come 
from  the  mouths  of  different  witnesses,  it  is  seldom  that  it  is  not 
possible  to  pick  out  appareht  or  real  inconsistencies  between  them. 
These  inconsistencies  are  studiously  displayed  by  an  adverse  pleader, 
but  oftentimes  with  little  impression  upon  the  minds  of  the  judges. 
On  the  contrary,  a  close  and  minute  agreement  induces  the  suspicion 
of  confederacy  and  fraud."  '  These  last  observations  apply  with 
almost  overwhelming  force,  when  the  facts  deposed  to  consist  of 
conversations,  or  of  a  series  of  trifling  and  unimportant  events,  and 
the  testimony  is  given  after  the  lapse  of  a  considerable  interval  of 
time." 


§  61.^  Fourthly,  in  receiving  the  knowledge  of  facts  from  the  I  52 
testimony  of  others,  men  are  much  influenced  by  their  accordance 
7vith  facts  x>reviously  knoivn  or  believed ;  and  this  constitutes  what 
is  termed  their  probability.  Statements,  thus  probable,  are  received 
upon  evidence  much  less  cogent  than  is  required  for  the  belief  of 
those  which  do  not  accord  with  previous  knowledge;  but  while  such 
statements  are  more  readily  received,  and  justly  relied  upon,  care 
should  be  taken  lest  all  others  be  unduly  distrusted.  "While  un- 
bounded credulity  is  the  attribute  of  weak  minds,  which  seldom 
think  or  reason  at  all, — quo  magis  nesciunt,  eo  magis  admirantur, 
— indiscriminate  scepticism  belongs  only  to  those  who,  affecting  to 
make  their  own  knowledge  and  observation  the  exclusive  standard 
of  probability,  forget  that  they  are  liable  to  be  misled  even  by  their 
own  senses.*  Such  persons,  therefore,  if  they  intend  to  sustain  a 
truly  consistent  character,  should  act  like  Moliere's  Docteur,  in 
"  Le  Mariage  Forc6,"  who,  in  answer  to  Sganarelle's  statement  that 
he  had  come  to  see  him,  replied,  "  Seigneur  Sganarelle,  changez, 


1  Part  3,  ch.  1,  p.  158. 

^  See  further  on  this  interesting  subject,  Greenl.  on  Test,  of  Evang. 
U  34—36. 

^  Gr.  Ev.  ^  8,  in  great  part. 

*  Abercr.  on  Intell.  Pow.,  Part  2,  ^  3,  p.  74.  Channing,  on  Ev.  of  Revealed 
Eelig.,  3d  vol.  of  Works,  p.  116,  observes — "All  my  senses  have  sometimes 
given  false  reports." 

6  LAW  OF  EVID. — V.  I.  (2947) 


82  ACCORDANCE  WITH  PREVIOUS  KNOWLEDGE.  [pART.  I. 

s'il  vous  plait,  cette  fa9on  de  parler.  Notre  pbilosophe  ordonne 
de  ne  point  enoacer  de  proposition  decisive,  de  parler  de  tout  avec 
incertitude,  de  suspendre  toujours  son  jugement;  et  par  cette  raison 
vous  ne  pouvez  pas  dire,  je  suis  venu,  mais,  il  me  semble  que  je  suis 
venu." '  Sceptical  philosophers,  however,  inconsistently  enough 
with  their  own  principles,  yet  true  to  the  nature  of  man,  continue 
to  receive  a  large  portion  of  their  knowledge  upon  testimony,  de- 
rived, not  from  their  own  experience,  but  from  that  of  other  men; 
and  this,  even  when  it  is  at  variance  with  much  of  their  own  per- 
sonal observation.  Thus  they  receive  with  confidence  the  testimony 
of  the  historian  in  regard  to  the  occurrences  of  ancient  times;  that 
of  the  naturalist  and  the  traveller,  in  regard  to  the  natural  history 
and  civil  condition  of  other  countries;  and  that  of  the  astronomer, 
respecting  the  heavenly  bodies;  facts  which,  upon  the  narrow  basis 
of  their  own  "  firm  and  unalterable  experience,"  on  which  Mr.  Hume 
so  much  relies,  they  would  be  bound  to  reject,  as  wholly  unworthy 
of  belief.  =^ 


§  62.  Still,  it  is  not  the  miscalled  philosopher  alone,  who  is  too  ^  53 
ready  to  lend  an  academic  faith  to  a  narrative  of  facts,  which  do  not 
strictly  accord  with  preconceived  opinions,  mistaken  for  knowledge. 
In  all  ranks  and  conditions  of  life,  persons  of  this  stamp  abound, 
and  the  errors,  to  which  their  habits  of  distrust  expose  them,  are  at 
times  sufficiently  ridiculous.  Thus,  the  king  of  Siam  rejected  the 
testimony  of  the  Dutch  "ambassador,  that,  in  his  country,  water  was 
sometimes  congealed  into  a  solid  mass;  for  it  was  utterly  repugnant 
to  his  own  experience."  In  like  manner,  the  marvellous  but  true 
stories  narrated  by  the  Abyssinian  traveller  Bruce,  were  long  con- 
sidered by  his  countrymen  as  mere  fictions;  and  so  late  as  the  year 
1825,  the  evidence  given  by  the  great  railway  engineer,  George 
Stephenson,  before  a  parliamentary  committee,  was  much  impaired 
by  his  having  ventured  an  opinion,  that  steam -carriages  might  pos- 
sibly travel  on  railroads  twelve  miles  an  hour.*  A  contemplation 
of  the  instances  here  given,  and  of  others  which  will  readily  occur 


Scene  8.  "  Abercr.  on  Intell.  Pow.,  Part  2,  §  3,  pp.  79,  80. 

Id.  p.  75. 

Life  of  George  Stephenson,  by  Samuel  Smiles,  1857,  ch.  19. 

(2948) 


CHAP.  IV.]  CIRCUMSTANTIAL  EVIDENCE.  83 

to  the  reader,  naturally  suggests  two  reflections  ;  first,  that,  with 
man's  finite  knowledge,  he  should  be  slow  to  reject  a  narrative  as 
incredible,  merely  because  it  is  beyond,  or  even  contrary  to,  his  own 
very  limited  experience  ;  and  next,  that  progress  in  knowledge  is 
not  confined,  in  its  results,  to  the  simple  facts  ascertained,  but  has 
also  an  extensive  influence  in  enlarging  the  understanding  for  the 
further  reception  of  truth,  and  in  setting  it  free  from  many  of  the 
prejudices  which  influence  men,  whose  minds  are  limited  by  a 
narrow  field  of  observation.  Thus,  Archimedes,  deeply  imbued  as 
he  was  with  science,  might  have  believed  an  account  of  the  inven- 
tion and  wonderful  powers  of  the  steam-engine,  which  unscientific 
Englishmen  of  the  last  century  would  have  rejected  as  incredible 
and  absurd.^ 


§  63."  A  fifth  basis  of  evidence  is  the  known  and  experienced  §  54 
connexion  subsisting  between  collateral  facts  or  circumstances, 
satisfactorily  proved,  and  the  fact  in  controversy.  This  is  merely 
the  legal  application,  in  other  terms,  of  a  pi'ocess  familiar  in  natural 
philosophy,  showing  the  truth  of  an  hypothesis  by  its  coincidence 
with  existing  phenomena.  The  connexion  and  coincidences  in 
question  may  be  either  physical  or  moral ;  and  the  knowledge  of 
them  is  derived  from  the  known  laws  of  matter  and  motion,  from 
animal  instincts,  and  from  the  physical,  intellectual,  and  moral  con- 
stitution and  habits  of  man.^  Their  force,  which  will  be  considered 
hereafter,*  depends  upon  their  sufficiency  to  exclude  every  other  hypo- 
thesis but  the  one  under  consideration.  Thus,  the  possession  of 
goods  recently  stolen,  accompanied  with  personal  proximity  in  point 
of  time  and  place,  and  inability  in  the  party  charged,  to  show  how 
he  came  by  them,  would  seem  naturally,  though  not  necessarily,''  to 


^  Abercr.  on  Intell.  Pow.,  Part  2,  §  3,  pp.  75,  7G.  So  Voltaire  shrewdly 
observes : — "La  oA  le  vulgaire  rit,  le  pbilosophe admire  ;  et  11  rit  oil  le  Aiilgaire 
ou^Te  de  grands  yeux  stupides  d'etonnement."     Vol.  42,  p.  142. 

'■^  Gr.  Ev.  ^  11,  verbatim,  except  the  notes. 

^  For  an  amusing  example  of  a  fact  proved  by  along  chain  of  circumstantial 
evidence,  see  Voltaire's  Zadig,  ch.  3.  *  Post,  g  §  64 — 69. 

^  Joseph's  cup  was  found  in  Benjamin's  sack,  Gen.  c.  44,  v.  1 — 17.  The 
amusing  story  of  the  Hunchback,  in  the  Arabian  Nights,  and  the  no  less 
diverting  story  of  the  Baked  Head,  in  Mr.  Morier's  Hajji  Baba,  both  turn  on 

(2949), 


84  CIRCUMSTANTIAL  EVIDENCE.  [pART  I. 

exclude  every  other  hypothesis,  but  that  of  his  guilt.  But  the  pos- 
session of  the  same  goods  at  another  time  and  place  would  warrant 
no  such  conclusion,  as  it  would  leave  room  for  the  hypothesis  of 
their  having  been  lawfully  purchased  in  the  course  of  trade.  Similar 
to  this,  in  principle,  is  the  rule  of  noscitur  a  sociis,  according  to 
which  the  meaning  of  certain  words  in  a  written  instrument  is 
ascertained  by  the  context. 

§  64.'  In  considering  this  subject,  it  must  always  be  borne  in  g  55 
mind,  that  in  the  actual  occurrences  of  human  life  nothing  is  incon- 
sistent. Every  event,  which  actually  transpires,  has  its  appropriate 
relation  and  j^lace  in  the  vast  complication  of  circumstances  of 
which  the  afPairs  of  men  consist;  it  owes  its  origin  to  those  which 
have  preceded  it;  it  is  intimately  connected  with  many  others  which 
occur  at  the  same  time  and  place,  and  often  with  those  cf  remote 
regions;  and,  in  its  turia,  it  gives  birth  to  a  thousand  others  which 
succeed.^  In  all  this  system  of  inter-dependence  perfect  harmony 
prevails;  so  that  a  man  Can  hardly  invent  a  story,  which,  if  closely 
compared  with  all  the  actual  contemporaneous  and  successive 
occuxTences,  may  not  be  shown  to  be  false.  From  these  causes, 
minds  enlarged  by  long  and  mature  experience,  and  close  obser- 
vation of  the  conduct  and  affairs  of  men,  may,  with  a  rapidity  and 
certainty  approaching  to  intuition,  perceive  the  elements  of  truth 
or  falsehood  in  the  face  itself  of  the  narrative,  without  any  regard 
to  the  narrator.  Thus,  an  experienced  judge  may  instantly  dis- 
cover the  falsehood  of  a  witness,  whose  story  an  inexperienced  jury 
might  be  inclined  to  believe.  But  though  the  mind,  in  these  cases, 
seems  to  have  acquired  a  new  power,  it  is  properly  to  be  referred 
only  to  experience  and  observation. 

§  65»^  In  trials  of  fact,  it  will  generally  be  found  that  the  factum    o  ^g 
probandum  is  either  directly  attested  by  those  who  speak  from  their 
own  actual  and  personal  knowledge  of  its  existence,  or  it  is  to  be 


an  erroneous  presumption  of  guilt  arising  from  recent  possession.     See,  too, 
Smollett's  Roderick  Random,  ch.  xxi. 

^  Gr.  Ev.  §  12,  in  great  part. 

^  1  St.  Ev.  560  ;  3  Channing's  Works,  133,  340. 

*  Gr.  Ev.  I  13,  in  great  part. 

(2950) 


CHAP.    IV.]  DIRECT  AND  CIRCUMSTANTIAL  EVIDENCE.  85 

inferred  from  other  facts,  satisfactorily  proved.  In  the  former  case, 
the  proof  rests  upon  the  second,  third,  and  fourth  grounds  of  belief 
before  mentioned;  that  is,  it  depends  partly,  upon  faith  in  human 
testimony,  as  sanctioned  by  experience; — which  faith  will  be  in- 
creased or  diminished  in  proportion  to  the  apparent  honesty  and 
intelligence  of  the  witnesses,  and  their  opportunities  for  observa- 
tion;— partly,  upon  the  exercise  of  reason  on  the  consistency  of 
the  narratives  given  by  different  witnesses; — and  here  the  value  of 
the  testimony  will  vaiy,  according  to  the  number  of  the  deponents, 
and  the  apparent  absence  or  presence  of  collusion; — and  partly, 
upon  the  conformity  of  the  testimony  with  experience.  In  the 
latter  case, — that  is,  when  the  fact  in  dispute  is  to  be  inferred 
from  other  facts  satisfactorily  established, — the  proof  rests  upon 
the  same  grounds,  with  the  addition  of  the  experienced  connexion 
between  the  collateral  facts  thus  proved,  and  the  fact  which  is  in 
controversy;  which  connection  constitutes  the  j^/f/t  basis  of  evidence 
before  stated.  The  facts  proved  are  in  both  cases  directly  attested. 
In  the  former  case,  the  proof  applies  immediately  to  the  factum 
probandum,  without  any  intervening  process,  and  it  is  therefore 
called  direct  or  positive  testimony.  In  the  latter  case,  as  the  proof 
applies  immediately  to  collateral  facts,  supposed  to  have  a  con- 
nexion, near  or  remote,  with  the  fact  in  controversy,  it  is  termed 
circumstantial;  and  sometimes,  but  not  with  entire  accuracy,  pre- 
sumptive. Thus,  if  a  witness  testifies  that  he  saw  A.  inflict  a 
mortal  wound  on  B.,  of  which  he  instantly  died,  this  is  a  case  of 
direct  evidence;  and,  giving  to  the  witness  the  credit  to  which  men 
are  generally  entitled,  the  crime  is  satisfactorily  proved.  If  a  wit- 
ness testifies  that  a  deceased  person  was  shot  with  a  pistol,  and  the 
wadding  is  found  to  be  part  of  a  letter  addressed  to  the  prisoner, 
the  residue  of  which  is  discovered  in  his  pocket,  here  the  facts 
themselves  are  directly  attested;  but  the  evidence  they  afford  is 
termed  circumstantial;  and  from  these  facts,  if  unexplained  by  the 
prisoner,  the  jury  may,  or  may  not,  deduce,  or  infer,  or  presume  his 
guilt,  according  as  they  are  satisfied,  or  not,  of  the  natui-al 
connexion  between  similar  facts  and  the  guilt  of  the  person  thus 
connected  with  them.  In  both  cases,  the  veracity  of  the  witness  is 
presumed,  in  the  absence  of  proof  to  the  contrary;  but  in  the  latter 
case  there  is  an  additional  presumption  or  inference,  founded  on  the 


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86  DIRECT  AND  CIRCUMSTANTIAL  EVIDENCE^  [PART.  I. 

known  usual  connexion  between  the  facts  proved,  and  tbe  guilt  of 
the  party  implicated.  This  operation  of  the  mind,  which  is  more 
complex  and  difficult  in  the  latter  case,  has  caused  the  evidence 
afforded  by  circumstances  to  be  termed  presumptive  evidence; 
though,  in  truth,  the  operation  is  similar  in  both  cases. 


§  66.  Much  has  been  said  and  written  respecting  the  comparative  a  57 
value  of  direct  and  circumstantial  evidence;  but  as  the  controversy 
seems  to  have  arisen  from  a  misapprehension  of  the  real  nature 
and  object  of  testimony,  and  can  moreover  lead  to  no  practical  end, 
it  is  not  here  intended  to  enter  into  the  lists  further  than  to  ob- 
serve, that  one  argument  urged  in  favour  of  circumstantial  evidence 
is  palpably  erroneous.  "  Witnesses  may  lie,  but  circumstances 
cannot,"  ^  has  been  more  than  once  repeated  from  the  bench,  and  is 
now  almost  received  as  a  judicial  axiom.  Yet  certainly  no  proposi- 
tion can  be  more  false  or  dangerous  than  this.  If  "circumstances  " 
mean, — and  they  can  have  no  other  meaning, — those  facts  which 
lead  to  the  inference  of  the  fact  in  issue,  they  not  only  can,  but 
constantly  do  lie;  or,  in  other  words,  the  conclusion  deduced  from 
them  is  often  false.  Thus,  when  at  Melita  the  viper  fastened  on 
St.  Paul's  hand,  the  barbarians  said  among  themselves,  "  No  doubt 
this  man  is  a  murderer;"  but  when  they  saw  that  no  harm  came 
to  him,  "they  changed  their  minds,  and  said  that  he  was  a  god."^ 
Here,  both  conclusions  were  alike  false.  So,  in  Macbeth,  the 
master  j:)oet  of  nature  has  described  Lenox,  Macduff,  and  the  other 
chieftains  as  erroneously  assuming,  first,  that  the  grooms  had  mur- 
dered the  King,  because  "  their  hands  and  faces  were  all  badged 
with  blood,  so  were  their  daggers,  which  unwiped  we  found  upon 
their  pillows:"^  and  next,  that  "they  were  suborned"  by  the 
king's  two  sons,  who  had  "  stolen  away  and  fled."  *  It  is  no  answer 
to  say  that  these  are  mere  instances  of  hasty  and  illogical  inferences, 
which  display  only  the  ignorance  and  presumption  of  the  persons  by 


^  Annesley  i\  Ld.  Anglesea,  17  How.  St.  Tr.  1430,  per  Mountenoy,  B. ;  R.  v. 
Blandy,  18  How.  St.  Tr.  1187,  per  Legge,  B. 

^  Tlie  Acts,  xxviii.  3 — 5.  So,  when  Jacob  saw  Joseph's  coat  of  many  colours 
stained  with  kid's  blood,  "he  knew  it,  and  said,  'It  is  my  son's  coat;  an 
evil  beast  hath  devoured  him  ;  Joseph  is  without  douht  rent  in  pieces.'  "  Gen. 
xxvii.  33.  3  ^(.^  j^j^  gp   3  4  ^^i  jj^  gp    4^ 

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CHAP.  IV.]  DIRECT  AND  CIRCUMSTANTIAL  EVIDENCE.  87 

whom  they  were  drawn,  and  that  the  "  circumstances  which  cannot 
lie  "  are  such  as  necessarily  lead  to  a  certain  conclusion.  Who  is 
to  decide  on  this  necessity  ?  Clearly  those  who  have  also  to  decide 
on  the  fact  in  issue.  Throw  a  case  of  circumstantial  evidence  into 
the  form  of  a  syllogism,  and  it  will  be  found  that  the  major  premiss 
rests  solely  on  the  erring  experience  of  the  tribunal  to  whom  it  is 
presented.  Besides,  these  very  circumstances  must  be  proved,  like 
direct  facts,  by  witnesseses,  who  are  equally  capable  with  others  of 
deceiving  ^  or  of  being  deceived.  So  that  in  no  sense  is  it  possible 
to  say,  that  a  conclusion  drawn  from  circumstantial  evidence  can 
amount  to  absolute  certainty,  or  in  other  words,  that  circumstances 
cannot  lie. 


§  67.  Although  it  is  not  here  proposed  to  take  any  part  in  the  a  53 
controversy  respecting  the  comparative  weight  due  to  direct  and 
circumstantial  evidence;  still,  it  may  not  be  without  some  advan- 
tage to  point  out  briefly  the  dangers  against  which  juries  should 
especially  guard,  when  called  upon  to  decide  cases  supported  by  each 
of  these  species  of  testimony.  For  instance,  in  a  case  sought  to  be 
directly  established,  the  witnesses  are  usually  few,  and  consequently 
there  is  the  more  reason  to  apprehend^ conspiracy  and  fraud;  since 
two  or  three  persons  are  far  more  easily  found  than  a  larger 
number,  who,  from  motives  of  interest  or  malignity,  will  combine 
to  aggrandise  themselves  or  to  ruin  an  opponent.  Their  story,  too, 
being  for  the  most  part  simple,  is  readily  concocted  and  remembered, 

^  lago's  story  of  the  handkerchief,  which  goaded  Othello  to  madness,  will 
occur  to  everyone: — 

"  I  AGO.  Have  you  not  sometimes  seen  a  handkerchief, 

Spotted  with  strawberries,  in  your  wife's  hand? 
Othello.  I  gave  hep  such  a  one;  'twas  my  first  gift. 
Iago.  I  knew  not  that;  but  such  a  handkerchief, 
(I  am  sure  it  was  your  wife's,)  did  I  to-day 
See  Cassio  wipe  his  beard  with. 
Othello.  If  it  be  that, — 

Iago.  If  it  be  that,  or  any  that  was  hers, 

It  speaks  against  her,  with  the  other  j)7-oofs. 
Othello.  Oh!  that  the  slave  had  forty  thousand  lives — 
One  is  too  poor,  too  weak  for  my  revenge! 
Now  do  I  see  His  true.^' 

Othello,  Act  iii,  So.  iii. 
(2953) 


88  CIRCUMSTANTIAL  EVIDENCE.  [pART  I. 

while  its  very  simplicity  renders  it  extremely  difficult,  on  cross- 
examination,  to  detect  the  imposture.  It  is  on  this  ground  that 
the  uncorroborated  statements  of  single  witnesses,  especially  when 
they  testify  to  atrocioiis  crimes,  such  as  rape,  &c.,'  or  are  known, 
like  accomplices,^  to  be  persons  of  bad  character,  and  to  have  an 
interest  in  the  result,  have  ever  been  regarded  with  merited  distrust, 
and  are  now,  in  practice,  generally  deemed  insufficient  to  warrant  a 
conviction. 


§  68.  With  respect  to  cases  supported  by  circumstantial  evidence,  ^  59 
juries  should  bear  in  mind,  that,  although  the  number  of  facts 
drawn  fi'om  apparently  independent  sources  renders  concerted 
perjury  both  highly  improbable  in  itself,  and  easy  of  detection  if 
attempted;  ^  yet,  the  witnesses  in  such  cases  are  more  likely  to  make 
unintentional  misstatements,  than  those  who  give  direct  testimony. 
The  truth  of  the  facts  they  attest  depends  frequently  on  minute 
and  careful  observation,  and  experience  teaches  the  danger  of  relying 
implicitly  on  the  evidence. of  even  the  most  conscientious  witnesses, 
respecting  dates,  time,  distances,  footprints,  handwriting,  admis- 
sions, loose  conversations,  and  questions  of  identity.  Yet  these  are 
the  links  in  the  chain  of  circumstances,  by  which  guilt  is  in  general 
sought  to  be  established.  The  number  too  of  the  witnesses,  who 
must  all  speak  the  truth,  or  some  link  will  be  wanting,  renders 
additional  caution  the  more  necessary.  Besides,  it  must  be  remem- 
bered, that,  in  a  case  of  circumstantial  evidence,  the  facts  are 
collected  by  degrees.  Something  occurs  to  raise  a  suspicion  against 
a  particular  party.  Constables  and  police  officers  are  immediately 
on  the  alert,  and,  with  professional  zeal,  ransack  every  place  and 
paper,  and  examine  into  every  circumstance  which  can  tend  to 
establish,  not  his  innocence,  but  his  guilt.  Presuming  him  guilty 
from  the  first,  they  are  apt  to  consider  his  acquittal  as  a  tacit 
reflection  on  their  discrimination  or  skill,  and,  with  something  like 
the  feeling  of  a  keen  sportsman,  they  determine,  if  possible,  to  bag 
their  game.  Innocent  actions  may  thus  be  misinterpreted, — inno- 
cent words  misunderstood;  and,  as  men  readily  believe  what  they 


1  1  Hale,  635.  ^  R.  v.  Jones,  2  Camp.  132. 

3  Greenl.  on  Test,  of  Evang.  I  40. 

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CHAP.  IV.]  CIRCUMSTANTIAL  EVIDENCE.  89 

anxiously  desire,'  facts  the  most  harmless  may  be  construed  into 
strong  confirmation  of  preconceived  opinions.^  It  is  not  here 
asserted  that  this  is  frequently  the  case,  nor  is  it  intended  to 
disparage  the  police.  The  feelings  by  which  they  are  actuated,  are 
common  to  counsel,  engineers,  surveyors,^  medical  men,  antiquarians, 
and  philosophers  ;  indeed,  to  all  persons  who  first  assume  that  a 
fact  or  system  is  true,  and  then  seek  for  arguments  to  support  and 
prove  its  truth. 

§  69.  But,  admitting  that  the  facts  sworn  to  are  satisfactorily 
proved,  a  further,  and  a  highly  difficult  duty  still  remains  for  the 
jury  to  perform.  They  must  decide,  not  whether  these  facts  are 
consistent  with  the  prisoner's  guilt,  but  whether  they  are  incon- 
sistent with  any  other  rational  conclusion  ;  for  it  is  only  on  this 
last  hypothesis  that  they  can  safely  convict  the  accused.* 


^  This  proposition  cannot  be  more  strikingly  illnstrated,  than  by  referring 
to  the  credit  that  was  givan  by  the  whole  civilized  world  to  the  lying  telegram 
which,  in  October,  1854,  announced  the  fall  of  Sebastopol. 

2  Ante,  §  57. 

^  Waters  v.  Thorn,  22  Beav.  547,  556,  557,  per  Eomilly,  M.  R. 

*  R.  V.  Hodge,  2  Lew.  C.  C.  227. 


60 


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90  PRESUMPTIVE  EVIDENCE.  [PABT  I. 


CHAPTER  V. 

PRESUMPTIVE  EVIDENCE. 

§  70.'  The  general  head  of  Presumptive  evidence  is  usually  g  qi 
divided  into  two  branches,  namely,  j^f^sum^ptions  of  Imv,  and  pre- 
sumptions  of  fact.  Presumptions  of  law  consist  of  those  rules, 
■which,  in  certain  cases,  either  forbid  or  dispense  with  any  ulterior 
inquiry.  They  are  founded,  either  upon  the  first  principles  of 
justice,  or  the  laws  of  nature,  or  the  experienced  course  of  human 
conduct  and  affairs,  and  the  connexion  usually  found  to  exist 
between  certain  things.  The  general  doctrines  of  presumptive 
evidence  are  not,  therefore,  peculiar  to  municipal  law,  but  are 
shared  by  it  in  common  with  other  departments  of  science. 
Thus,  the  presumption  of  a  malicious  intent  to  kill  from  the 
deliberate  use  of  a  deadly  weapon,  and  the  presumption  of  aquatic 
habits  in  an  animal  found  with  webbed  feet,  belong  to  the  same 
philosophy,  differing  only  in  the  instance,  and  not  in  the  principle 
of  its  application.  The  one  fact  being  proved  or  ascertained, 
the  other,  its  uniform  concomitant,  is  universally  and  safely  pre- 
sumed. It  is  this  imiformly  experienced  connexion  which  leads 
to  its  recognition  by  the  law,  without  other  proof;  the  presump- 
tion, however,  having  more  or  less  force,  in  proportion  to  the 
universality  of  the  experience.  And  this  has  led  to  the  distribu- 
tion of  presumptions  of  law  into  two  classes,  namely,  conclusive 
and  disputable. 

§  71."  Conclusive,  or,  as  they  are  elsewhere  termed,  imperative,    ?  gg 
or  absolute  presumptions  of  law,  are  rules  determining  the  quan- 
tity   of    evidence    requisite    for    the    support    of   any   particular 
averment,  which  is  not  permittted  to  be   overcome  by  any  proof 
that   the    fact   is    otherwise.     They  consist  chiefly  of  those  cases 


1  Gr.  Ev.  I  14,  verbatim.  "  Gr.  Ev.  I  15,  verbatim. 

(2956) 


CHAP,  v.]  CONCLUSIVE  STATUTABLE    PRESUMPTIONS.  91 

in  which  the  long  experienced  connexion,  just  alluded  to,  has 
been  found  so  general  and  uniform,  as  to  render  it  expedient  for 
the  common  good,  that  this  connexion  should  be  taken  to  be  in- 
separable and  universal.  They  have  been  adopted  by  common  con- 
sent, from  motives  of  common  policy,  for  the  sake  of  greater  certainty, 
and  the  promotion  of  peace  and  quiet  in  the  community;  and  there- 
fore it  is,  that  all  corroborating  evidence  is  dispensed  with,  and  all 
opposing  evidence  is  forbidden.' 

§  72.  Sometimes  this  common  consent  is  expressly  declared  ^  63 
through  the  medium  of  the  legislature  in  statutes.  Thus,  under 
"  The  Bankruptcy  Act,  1869,"  the  registration  of  a  special  resolu- 
tion of  the  creditors  for  a  liquidation  by  arrangement,  or  of  an 
extraordinary  resolution  for  composition,  was,  in  the  absence  of 
fraud,  conclusive  evidence  that  such  resolutions  respectively  had 
been  duly  passed,  and  that  the  Act  had  been  complied  with.^  So, 
under  "  The  Bankruptcy  Act,  1883,"  the  approval  of  the  Court, 
testified  by  a  certificate  of  the  official  receiver,  is  conclusive  as  to 
the  validity  of  any  composition,  or  general  scheme  of  arrangement, 
accepted  in  pursuance  of  the  Act.^  All  the  requisitions  of  "  The 
Public  Schools  Act,  1868,"  in  respect  to  any  statutes  made  by  the 
governing  body  of  a  school,  "  shall  be  deemed  to  have  been  duly 
complied  with,"  so  soon  as  the  statutes  themselves  have  been 
approved  by  Her  Majesty  in  Council.^  So  also,  under  "  The 
Endowed  Schools  Act,  1869,"  the  order  in  council  approving  a 
scheme  is  conclusive   evidence    of  its   validity;^  and  under  "The 


^  The  presumption  of  the  Roman  law  is  defined  to  be,  "  conjectura,  ducta 
ab  eo,  quod  ut  plurimum  fit.  Ea  conjectura  vel  a  lege  inducitur,  vel  ajudice. 
Quse  ab  ipsa  lege  inducitur,  vel  ita  comparata,  ut  probationem  contrarii  hand 
admittat;  vel  ut  eadem  possit  elidi.  Friorem  doctores  prsesumjMonem  juris  et 
DE  JURE,  liosteriorem  prscsmnpiionem  juris,  adpellant.  Quaj  a  Judice  indu- 
citur conjectura,  ^^rcYswwjj^/o  iiOMixis  vocari  solet;  et  semper  admittit  proba- 
tionem contrarii,  quamvis,  si  alicujus  moment!  sit,  probandi  onere  relevet." 
Hein.  ad  Pand.,  Pars  iv.  ^  124.  Of  the  former,  answering  to  our  conclusive 
presumption,  Mascardus  observes, — "Super  hac  prajsumptione  lex  firmum 
sancit  jus,  et  cam  pro  veritate  hahet.''^  1  de  Prob.,  Qua^st.  x.  48.  An  exception 
to  the  conclusiveness  of  this  class  of  presumptions  is  allowed  by  the  civil  law, 
when  the  presumption  is  met  by  an  admission  in  judicio. 

2  32  &  33  v.,  c.  71,  I  127. 

3  46  &  47  v.,  c.  52,  I  18,  subs.  9. 

*  31  &  32  v.,  0.  118,  I  8,  subs.  4.  *  32  &  33  V.,  c.  56,  g  47. 

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92  CONCLUSIVE  STATUTABLE  PRESUMPTIONS.  [PART  I. 

Valuation  Metropolis  Act,  1869,"  "  the  vahiation  list  for  the  time 
beinof  in  force  shall  be  deemed  to  have  been  duly  made."  '  The 
Act,  too,  of  10  &  17  v.,  c.  59,  contains  a  remarkable  clause,  for 
it  enacts,  in  §  19,  that  "  any  draft  or  order  drawn  upon  a  banker 
payable  to  order  on  demand,  which  shall,  when  presented  for 
payment,  purport  to  be  indorsed  by  the  jierson  to  ichom  the  same 
shall  be  drawn  paya^Zc," — which  last  words  have  been  held  to 
include  the  payee's  agent,  though  he  may  not  really  be  authorised 
to  indorse," — "  shall  be  a  sufficient  authority  to  such  banker  to  pay 
the  amount  of  such  draft  or  order  to  the  bearer  thereof;  and  it  shall 
not  be  incumbent  on  such  banker^  to  prove  that  such  indorsement, 
or  any  subsequ^ent  indorsement,  was  made  by,  or  under  the  direction 
of,  the  person  to  whom  the  said  draft  or  order  was  or  is  made  pay- 
able either  by  the  drawer  or  any  indorser  thereof."*.  So,  under 
"  The  Stamp  Act,  1870,"  "  a  bill  of  exchange  or  promissory  note 
purporting  to  be  drawn  or  made  out  of  the  United  Kingdom,  is,  for 
the  puroso  of  this  Act,  to  be  deemed  to  have  been  so  di'awn  or 
made,  although  it  may  in  fact  have  been  drawn  or  made  within 
the  United  Kingdom."  ^ 

§  73.  Thus,   too,    by  the  statutes  of    limitation,'^  where    a  debt    g  64 

1  32  &  33  v.,  c.  67,  §  45. 

2  Chariest;.  Blackwell,  L.  E.,  2  C,  P.  D.  151,  per  Ct.  of  App. 

^  This  enactment  does  not  protect  any  other  person  than  a  banker  who 
takes  a  cheque  on  the  faith  of  a  forged  indorsement.  Ogden  v.  Benos,  9 
Law  Eep.,  C.  P.  513;  43  L.  J.,  C.  P.  259,  S.  C. 

*  See  45  &  46  V.,  c.  61,  §  60.  See  also  Hare  v.  Copland,  13  Ir.  Law  R., 
N.  S.  426. 

5  33  &  34  v.,  c.  97,  ?  52.     See  45  &  46  V.,  c.  61,  §  4. 

6  21  J.  1,  c.  16;  16  &  17  V.,  c.  113,  |  20,  Ir.  The  first  Act  enacts,  in  §  3, 
that  ' '  all  actions  of  trespass  quare  clausum  fregit,  all  actions  of  trespass, 
detinue,  action  sur  trover,  and  replevin  for  taking  away  of  goods  and  cattle, 
all  actions  of  account,  and  upon  the  case,  other  than  such  accounts  as  concern 
the  trade  of  merchandise  heiwcen  merchant  and  merchant,  their  factors  or  servants 
all  actions  of  debt  grounded  upon  any  lending  or  contract  without  specialty, 
all  actions  of  del)t  for  arrearages  of  rent,  and  all  actions  of  assault,  menace, 
battery,  wounding,  and  imprisonment,  or  any  of  them,  shall  be  commenced 
and  sued  within  the  time  and  limitation  hereafter  expressed,  and  not  after, 
(that  is  to  say),  the  said  actions  upon  the  case,  other  than  slander,  and  the 
said  "actions  for  account,  and  the  said  actions  for  trespass,  debt,  detinue,  and 
replevin  for  goods  or  cattle,  and  the  said  action  of  trespass  quare  clausum 
fregit,  within  six  years  next  after  the  cause  of  such  actions  or  suit,  and  not 

(2958) 


CHAP.  V.  ]  STATUTES  OF  LIMITATION.  93 

has  been  created  by  simple  contract/  and  has  not  been  distinctly 
recognised  within  six  years  as  a  subsisting  obligation,  either  in 
some  "writing  signed  by  the  party  chargeable,  or  his  agent,  or  by 
part  payment,^  no  action  can  be  maintained  to  recover  it ;  that  is, 
it  is  conclusively  presumed  to  have  been  paid.  So,  all  actions 
on  the  case,  other  than  slander,  actions  of  trespass  to  goods  or 
land,  and  actions  of  detinue^  or  replevin,  must  be  brought  within 
a  like  period  of  six  years  after  the  cause  of  action*  shall  have 
occrued  f  and  no  action  can  be  maintained  for  an  assault  or  false 
imprisonment  after  the  lapse  of  four  years  f  for  slander  after  the 
lapse  of  two  years ;'  or  for  compensation  to  the  families  of  per- 
sons killed  by  accident,  after  twelve  calendar  months  from  the 
death  of  the  deceased.^  So,  under  "The  Employers'  Liability  Act, 
1880,"  compensation  for  injuries  cannot  be  recovered,  unless  the 
action  be  commenced  within  six  months  from  the  date  of  the 
accident,  or,  in  case  of  death,  "within  twelve  months  from  the 
time  of  death. "°  Again,  actions  against  persons  for  anything 
done  by  them  under  the  authority  or  in  pursuance  of  any  local 
and  personal  Act,  must  be  brought  within  two  years  after  the 
cause  of  action  shall  have  accrued,  or  in  the  case  of  continuing 
damage,  within  one  year  after  the  damage  shall  have  ceased.^"     So, 

after  ;  and  the  said  actions  of  trespass,  of  assault,  battery,  wounding,  im- 
prisonment, or  any  of  tliem,  within  four  years  next  after  the  cause  of  such 
actions  or  suit,  and  not  after  ;  and  the  said  actions  upon  the  case  for  words, 
within  two  years  next  after  the  words  spoken,  and  not  after. ' '  The  exception 
marked  in  italics,  after  perplexing  the  courts  for  two  centuries,  and  giving 
rise  to  numerous  conflicting  decisions,  has  at  length  been  repealed  by  19  & 
20  v.,  c.  97,  I  9. 

^  The  St.  of  Limit.  21  J.  1,  c.  16,  applies  to  an  action  of  debt  for  a  penalty 
under  a  by-law.     Tobacco-pipe  JNIakers'  Co.  v.  Loder,  16  Q.  B.  765. 

2  9  G.  4,  c.  14,  ?  1  ;  19  &  20  V.,  c.  97,  |  13. 

3  See  Wilkinson  v.  Verity,  6  Law  Rep.,  C.  P.  206;  40  L.  J.,  C.  P.  141, 
S.  C. ;  as  to  when  the  cause  of  action  will  accrue  in  detinue. 

*  As  to  when  concealed  fraud  and  non-discovery  can  be  pleaded  in  reply 
to  a  defence  under  the  Stat.,  see  Gibbs  v.  Guild,  51  L.  J.,  Q.  B.  228  ;  afFd. 
on  App.,  51  L.  J.  Q.  B.  313;  L.  R.,  9  Q.  B.  D.  59,  S.  C.  See,  also,  Barber  v. 
Houston,  14  L.  R.  Ir.  273. 

^  See  ante,  p.  87,  n.  6.  ^  See  id.  '  See  id. 

8  9  &  10  v.,  c.  93,  I  3,  as  amended  by  27  &  28  V.,  c.  95. 

'43  &  44  v.,  c.  42,  I  4.  A  notice  that  injury  has  been  sustained  must 
also  be  given  "within  six  weeks,"  though  in  cases  of  death,  the  judge  has 
power  to  relax  the  stringency  of  this  last  rule. 

^"o&eV.,  c.  97,  s.   5,  passed  10  Aug.,   1842,  after  reciting,  that  "divers 

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94  STATUTES  OF  LIMITATION.  [PART  I. 

any  action,  prosecution,  or  proceeding  against  any  person  for  any 
act  done  in  pursuance  or  intended  execution  of  the  Army  Act, 
1881,  or  of  the  Milita  Act,  1882,  must  be  commenced  within 
twelve  months  next  after  the  act,  neglect,  or  default  complained  of, 
or,  in  case  of  a  continuance  of  damage  within  twelve  months  next 
after  the  ceasing  thereof.'  So,  all  actions  and  proceedings  against 
persons  acting  under  any  of  the  statutes  passed  in  1861,  to  con- 
solidate the  law  relating  to  larceny,  malicious  injuries,  or  coin,"  or 
under  the  Naval  Prize  Act,  1864,^  the  Prison  Act,  1865,*  the  Seaman's 
Clothing  Act,  1869,^  the  Municipal  Corporations  Act,  1882,^  tho 
Public  Health  Act,  1875,'  or  the  Public  Health,  Ireland,  Act, 
1878,^  must  be  "commenced  within  six  months  after  the  fact 
committed  ;"  and  no  action  can  "  be  brought  against  any  justice 
of  the  peace,  for  anything  done  by  him  in  the  execution  of  his 
office,"  unless  it  be  commenced  within  a  like  period.'  Under 
some  of  the  Metropolitan  Police  Acts,  the  right  of  action  is  limited 
to  three  months  from  the  date  of  the  injury,'"  while  four  months 
and  two  months  are  the  respective  limits  under  "  The  Contagious 
Diseases,  Animals,  Act,  1878,""  and  "  The  Customs  Consohdation 
Act,  1876."'"  So,  when  a  judgment  has  been  obtained  against  a 
banking  copartnership,  no  execution  can  issue  thereon  against  any 
former  member  of  such  copartnership,  after  the  expiration  of  three 


Acts  commonly  called  public  local  and  personal,  or  local  and  personal,  Acts, 
and  divers  other  Acts  of  a  local  and  personal  nature,  contain  clauses  limiting 
the  time  within  which  actions  may  be  brought  for  anything  done  in  pursuance 
of  the  said  Acts  respectively,"  enacts,  that  "the  iieriod  within  which  any 
action  may  be  brought  for  anything  done,  under  the  authority  or  in  pursuance 
of  any  such  Act  or  Acts  shall  be  two  years,  or  in  case  of  continued  damage, 
then  within  one  year  after  such  damage  shall  have  ceased. ' ' 
M4  &  45  v.,  c.  58,  ^  170,  subs.  1  ;  45  &  46  V.,  c.  49,  §  46. 

2  24  &  25  v.,  c.  96,  ?  113 ;  c.  97,  ^1  ;  c.  99,  |  33. 

3  27  &  28  v.,  c.  25,  ?  51.  *  28  &  29  V.,  c.  126,  |  50. 
5  32  «&  33  v.,  c.  57,  ^6.                              «  45  &  46  V.,  c.  50,  §  226. 

7  38  &  39  v.,  c.  55,  §  264.  ^  4I  &  42  V.,  c.  52,  |  263,  Ir. 

»  11  &  12  v.,  c,  44,  §  8;  12  &  13  V.,  c.  16,  §  8,  Ir.  In  Scotland,  under 
"the  Summary  Procedure  Act,  1864,"  the  period  is  fixed  at  two  months,  27 
&28  v.,  c.  53,  ?  35. 

'"  2  &  3  v.,  c.  71,  ?  53  ;  Barnett  i'.  Cox,  9  Q.  B.  617  ;  Hazeldine  v.  Grove, 
3  Q.  B.  997  ;  3  G.  &  D.  210,  S.  C. 

"  41  &  42  v.,  c.  74,  §  55,  subs.  1. 

12  39  &  40  v.,  c.  36,  i  272,  as  amended  by  40  V.,  c.  13,  s.  4. 

(2960) 


CHAP,  v.]  STATUTES  OP  LIMITATION.  95 

years  next  after  the  person  sought  to  be  charged  shall  have  ceased 
to  be  a  member.' 

§  74  In  like  manner,  the  right  of  the  Sovereign,^  and  of  the  §  65 
Duke  of  Cornwall,^  to  institute  legal  proceedings  for  the  recovery 
of  lands,  rents,  or  minerals,  is  barred,  under  several  special 
statutes,  by  uninterrupted  possession  for  a  period  of  sixty,  or  in 
certain  cases,  of  one  hundred  years.  The  possession,  too,  of 
land,  or  of  rents,  for  the  length  of  time  mentioned  in  the  general  » 

statutes  of  limitation,  under  a  claim  of  absolute  title  and  owner- 
ship, constitutes  against  all  subjects  of  the  Crown  a  conclusive 
presumption  of  a  valid  grant.*     So  the   payment  of   a  modus,  or 

1  7  G.  4,  c.  46,  §  13.  See  In  re  North  of  Engl.  Joint  Stock  Bank  Co.,  ex 
parte  Gouthwaite,  20  L.  J.,  Ch.  188,  192,  193;  Barker  v.  Buttress,  7  Beav. 
134. 

2  9  G.  3,  c.  16;  24  &  25  V.,  c.  62;  39  &  40  V.,  c.  37,  Ir. 

»  7  &  8  v.,  c.  105,  II  73,  et  seq. ;  23  &  24  V.,  c.  53;  24  &  25  V.,  c.  62. 

*  This  period  has  been  limited  differently,  at  different  times;  but  for  many 
years  past,  it  has  been  shortened,  at  successive  revisions  of  the  law,  both  in 
England  and  the  United  States.  In  1833  the  Act  of  3  &  4  W.  4,  c.  27,  passed; 
and  by  ?  2  of  that  Statute  all  actions  to  recover  land  or  rent  are  barred,  after 
twenty  years  from  the  time  when  the  right  of  action  accrued ;  unless,  at  such 
time,  the  plaintiff  or  the  party  through  whom  he  claims  shall  have  been 
under  some  disability,  specified  in  the  Act,  in  which  case  he  is  allowed  ten 
years  from  the  ceasing  of  the  disability;  provided  that  in  no  case  shall  an 
action  be  brought  after  forty  years  from  the  time  when  the  right  first  accrued, 
although  the  period  of  ten  years  shall  not  have  expired,  ^l  16  &  17.  This 
statutory  rule  is  extended  by  ^^  24  &  25,  to  all  claims  in  equity  for  the 
recovery  of  land;  Magdalen  College  v.  Att.-Gen.,  26  L.  J.,  Ch.  620;  6  H.  of 
L.  Cas.  189,  S.  C. ;  and  it  also  applies  to  a  claim  for  dower;  Marshall  v. 
Smith,  34  L.  J.,  Ch.  189,  per  Stuart,  V.-C. ;  to  a  claim  for  compensation  for 
equitable  waste;  D.  of  Leeds  v.  Ld.  Amherst,  2  Phill.  117;  and  to  the  claim 
of  an  annuity  charged  upon  land  by  will,  the  twenty  years  in  this  last  case 
being  calculated  from  the  death  of  the  testator;  James  v.  Salter,  3  Bing.  N.  C. 
544.  The  sections,  however,  just  referred  to  do  not  apply  to  spiritual  or 
eleemosynary  cori^orations  sole,  who  are  empowered  by  §  29  to  bring  actions 
or  suits  to  recover  land  or  rent  within  two  successive  incumbencies  and  six 
years,  or,  in  case  these  periods  do  not  amount  to  sixty  years,  then  within 
sixty  years  next  after  the  right  of  action  shall  first  have  accured.  See 
Ecclesias.  Commis,  v.  Eowe,  49  L.  J.,  Q.  B.  771,  per  Dom.  Pr.,  overruling 
S.  C,  48  L.  J.,  Q.  B.  152.  §§  30—33  limit  the  time  within  which  ad  vow- 
sons  can  be  recovered,  while  §  40  enacts,  that  all  moneys  charged  upon  land 
and  legacies  shall  be  deemed  satisfied  at  the  end  of  twenty  years,  unless 
some  interest  shall  have  been  paid,  or  some  written  acknowledgment  shall 

(2961) 


96  TITLE  TO  LAND.  [PABT  I. 

the  adverse,  and  as  of  right  enjoyment  of  land  titbe-free,  for  the 
periods  specified  in  the  Act  of  2  &  3  W.  4,  c.  100/  conclusively 
bars  the  right  of  all  parties,  even  the  Queen,  to  recover  tithes, 
unless  such  payment  has  been  made,  or  enjoyment  had,  under  an 
express  written  consent  or  agi'eement.^ 

§  75.  So,  also,  in  the  completion  of  any  contract  of  sale  of  land,  I  g5 
the  period  of  the  commencement  of  title,  which  a  purchaser  may 
require,  or,  in  the  language  of  conveyancers,  the  root  of  title,  is  now 
have  been  given  in  the  meanwhile.  Under  I  28  no  mortgagor  shall  bring  a 
suit  to  redeem  a  mortgage  but  within  twenty  years  from  the  time  when  the 
mortgagee  took  possession  (See  Kinsman  v.  Kouse,  L.  E.,  17  Ch.  D.  104; 
50  L.  J.,  Ch.  486,  S.  C),  or  from  the  last  written  acknowledgment  of  the 
mortgagor's  title.  Mortgagees  also  may  bring  actions  to  recover  land  at  any 
time  within  twenty  years  next  after  the  last  payment  of  any  part  of  the 
principal  or  interest  secured  by  the  mortgage,  7  W.  4,  &  1  V.,  c.  28; 
Doe  r.  Eyre,  17  Q.  B.  3GG;  Doe  v.  Massey,  id.  373;  Ford  v.  Ager,  2  New  R. 
366,  per  Ex.;  32  L.  J.,  Ex.  269;  2  H.  &  C.  279,  S.  C;  pro^^ded  that  such 
last  payment  be  itself  within  twenty  years  from  the  date  of  the  mortgage; 
Hemming  v.  Blanton,  42  L.  J.,  C.  P.  158;  and  provided  that  the  payment  be 
made  by  the  mortgagor,  or  by  some  person  bound  to  make  it  on  his  behalf; 
Harlock  v.  Ashberry,  L.  R.  19,  Ch.  D.  539.  See,  also,  G  &  7  V.,  c.  54,  and  7  &. 
8  V. ,  c.  27,  which  Acts  extend  to  Ireland  such  of  the  provisons  of  3  &  4  W. 
4  c.  27,  as  were  not  already  in  force  there,  and  explain  and  amend  that  Act. 
This  i^eriod  of  twenty  years  has  been  adopted  in  most  of  the  United  States. 
See  4  Kent,  Com.  188,  n.  a.  The  same  period  in  regard  to  the  title  to  real 
property,  or,  as  some  construe  it,  only  to  the  profits  of  the  land,  is  adopted 
in  the  Hindoo  law.  1  Macnagh.  Elem.  of  Hindoo  L.  201.  See,  as  to  the 
Scotch  law,  37  &  38  V.,  c.  94,  §§  13,  34.  Under  the  "  Real  Property  Limita- 
tion Act,  1874,"  37  &  38  V.,  c.  57,  which  came  into  operation  on  the  1st 
January,  1879  (see  ?  12),  the  periods  of  limitation  have  been  greatly  reduced, 
six,  twelve,  and  thirty  years  having  been  substituted  for  the  ten,  twenty, 
and  forty  years  mentioned  in  the  Acts  of  1833  and  1837. 

1  See  Salkeld  v.  Johnson,  2  Ex.  R.  256.  In  this  important  case,  which  was 
an  issue  out  of  Chancery,  the  Barons  decided, — 1st,  That  the  enjoyment  of 
land,  producing  titheable  matters,  without  payment  of  tithe  for  the  period 
prescribed  by  the  Act  stated  above,  if  adverse  and  as  of  right,  created  an 
indefeasible  exemption  from  tithes,  Avithout  other  proof  of  the  legal  origin 
of  the  exemption;  but,  secondly,  that  the  non-payment  of  tithes  of  a  par- 
ticular thing  for  such  period,  in  respect  of  lands  for  which  tithes  of  other 
titheable  produce  had  been  paid  within  the  statuable  period,  did  not  exempt 
the  payment  of  the  tithes  of  that  particular  thing.  Subsequently,  Ld.  Cot- 
tenham,  C,  while  he  confirmed  the  decision  of  the  Ct.  of  Ex.  on  the  first 
point,  overruled  it  on  the  second.  See  S.  C.  reported  in  1  Hall  &  T.  329;  1 
M.  &  Gord.  242,  S.  C.  See,  also,  Fellowes  v.  Clay,  4  Q.  B.  313;  3  G.  «&  D. 
407,  S.  C. ;  and  Salkeld  v.  Johnson,  1  Hare,  196,  &  2  Com.  B.  749. 

^  See  Toymbee  v.  Brown,  3  Ex.  E.  117. 

(2962) 


CHAP  v.]  TITLE  TO  LAND — THE  PRESCRIPTION  ACT."  97 

fixed  by  statute  at  forty  years,  unless  there  be  some  stipulation  to 
the  contrary  in  the  contract,  or  some  very  special  circumstance  in 
the  case.'  Thus,  too,  by  the  Prescription  Act,"  the  length  of  time 
which  constitutes  the  period  of  legal  memory,  cr  in  other  words, 
which  affords  a  legal  title,  has  in  respect  of  incorporeal  rights'*  been 
definitely  fixed;  while  by  the  Act  of  3  &  4  W.  4,  c.  42,*  the  time 

1  37  &  38  v.,  c.  78,  ?  1.  ' 

2  2  &  3  W.  4,  c.  71,— extended  to  Ireland  by  21  &  22  Y.,  c.  42,— limits  the 
period  of  legal  memory  as  follows: — In  cases  of  rights  of  common  or  other 
profits  or  benefits  arising  out  of  lands,  except  tithes,  rent,  and  services,  2)rimd 
facie  to  thirty  years,  and  conclusively  to  sixty  years,  unless  it  shall  a^ipear  that 
such  rights  were  enjoj^ed  by  some  consent  or  agreement  expressly  given  or  made 
by  deed  or  Avriting,  §  1;  in  cases  of  ways  or  other  easements,  watercourses,  or 
the  use  of  water,  j)rimd  facie  to  twenty  years,  and  conclusively  to  forty  years, 
unless  it  shall  be  proved,  in  like  manner,  by  written  evidence,  that  the  same 
were  enjoyed  by  consent  of  the  owner,  §  2;  and  in  case  of  lights,  conclusively 
to  twenty  years,  unless  it  shall  be  proved,  in  like  manner,  that  the  same  were 
enjoyed  by  consent,  §  3.  See  Bewley  t'.  Atkinson,  49  L.  J.,  Ch.  G  per 
Hall,  V.-C;  afifd.  on  app.  43  L.  J.,  Ch.  133;  Tapling  v.  Jones,  34  L.  J., 
C.  P.  342,  in  Dom.  Troc;  20  Com.  B.,  N.  S.  166,  S.  C. ;  Lanfranchi  v. 
Mackenzie,  26  L.  J.,  Ch.  518;  4  Law  licp.,  Eq.  421,  S.  C. ;  Aynsley  v. 
Glover,  44  L.  J.,  Ch.  523.  §  4  directs,  that  the  before-mentioned  periods 
shall  be  deemed  those  next  before  some  suit  cr  action  respecting  the  claims, 
and  further  defines  what  shall  amount  to  an  interruption.  ^  6  enacts,  that 
no  presumption  shall  be  made  in  support  of  any  claim,  upon  proof  of  the 
enjoyment  of  the  right  for  any  less  period  than  the  period  mentioned  in  the 
Act  as  applicable  to  the  nature  of  the  claim.  §  7  provides  for  jiarties  who 
are  under  legal  disabilities.  As  to  what  evidence  of  user  is  necessary  under 
this  Act,  see  Lowe  v.  Carpenter,  6  Ex.  R.  825;  Hollins  v.  Verney,  L.  E.,  11  Q. 
B.  D.  715,  per  Ct.  of  App.;  53  L.  J.,  Q.  B.  430,  S.  C. ;  and  L.  R.,  13  Q.  B.  D. 
304,  per  Ct.  of  App.,  S.  C. 

•''  A  right  to  the  passage  of  air  and  light  to  a  garden.  Potts  v.  Smith,  38 
L.  J.,  Ch.  38,  per  Malins.  A''.-C. ;  or  of  air  to  a  Avindmill  cr  house,  is  not 
within  the  meaning  of  this  Act,  Webb  v.  Bird,  13  Com.  B.,  N.  S.  841; 
Bryant  v.  Lefever,  48  L.  J.,  C-  P.  380,  per  Ct.  of  App.;  L.  R.,  4  C.  P.  D. 
172,  S.  C. ;  nor  is  a  claim  of  "  a  free  fishery  "  in  the  waters  of  another  proiirie- 
tor,  Shuttleworth  v.  Le  Fleming,  19  Com.  B.,  N.  S.  687. 

*  I  3  enacts,  that  actions  of  debt  for  rent  upon  an  indenture  of  demise, 
actions  of  covenant  or  debt  upon  any  l)ond  or  other  specialty',  and  actions  of 
debt  or  scire  facias  upon  recognisance,  shall  be  brought  within  twenty  years 
after  the  cause  of  such  actions  or  suits;  actions  of  debt  upon  any  awr»rd 
where  the  submission  is  not  by  specialty,  or  for  any  fine  due  in  respect  of 
any  copyhold  estate,  or  for  an  escape,  or  for  money  levied  on  any  scire  facias, 
Avithin  six  years  after  the  cause  of  such  actions  or  suits;  and  actions  for 
penalties,  damages,  or  sums  of  money  given  to  the  partj^  grieved  by  any 
statute  now  or  hereafter  to  be  in  force,  within  two  years  after  the  cause  of 
such  actions:  "Provided  that  nothing  herein  contained  shall  extend  to  any 
action  given  by  any  statute,  where  the  time  for  bringing  such  action  is  or  shall  be 
by  any  statute  specially  limited."  ?,  4,  as  amended  by  19  &  20  Y.,  c.  97,  ^  10, 
7  LAW  OF  EVID. — V.  I.  (2963) 


98  SPECIALTIES — ACTIONS  FOR  PENALTIES.  [PART  I. 

witliin  which  actions  of  covenant,"  and  debt  on  specialties,"  and 
actions  for  penalties,''  may  be  brought,  is  expressly  limited.  So, 
where  any  real  or  personal  estate,  subject  to  trust  for  a  Roman 
Catholic  charity,  has  been  applied  upon  some  trusts  connected  with 
that  religion  for  twenty  years,  but  the  original  trusts  cannot  be 
ascertained  by  any  document,  a  consistent  usage  of  twenty  years  is, 
by  statute,  rendered  conclusive  evidence  of  the  trusts  on  which  the 
property  had  been  settled/  So,  under  Lord  Lyndhurst's  Act  for 
regulating  suits  relating  to  meeting-houses  and  other  property  held 
for  religious  purposes  by  dissenters,  the  usage  for  tiventy-five  years 
immediately  preceding  any  such  suit,  shall  be  taken  as  conclusive 
evidence  that  the  religious  doctrines,  opinions,  or  mode  of  worship, 
which  for  that  period  had  been  taught  or  observed  in  these 
houses,  may  be  properly  taught  or  observed,  provided  the  contrary 
is  not  declared  by  the  instrument  declaring  the  trusts  of  such 
houses,  either  in  express  terms  or  by  reference  to  some  other 
document/ 

§  76.  Many  statutes  also  limit  the  period  within  which  par-  |  gg 
ticular  offenders  may  be  prosecuted.  Of  these,  the  Act  of  7  W.  3, 
c.  3,  is  the  most  remarkable,  as  it  enacts,  that  no  person  shall  be 
prosecuted  for  any  high  treason  or  misprision  within  the  Act,  other 
than  a  design  or  attempt  to  assassinate  the  Sovereign,  unless  the 
bill  of  indictment  be  found  within  three  years  after  the  commission 
of  the  offence. "^  So,  all  suits,  indictments,  or  informations,  brought 
or  exhibited,  for  any  offence  against  the  Customs  Acts,   in  any 

provides  for  parties  under  legal  disabilities,  and  §  5  states  the  effect  of  an 
acknowledgment  in  writing  or  part  payment.  See  the  Irish  Act  of  16  &  17 
v.,  c.  113   U  20—24;  also  Alliance  Bk.  of  Sila  v.  Carey,  49  L.  J.,  C.  P.  781. 

1  See  In  re  Baker,  Collins  v.  Rhodes,  L.  R.,  20  Ch.  D.  230. 

■^  The  term  "specialty"  includes  all  actions  on  statutes,  as,  for  instance,  an 
action  against  a  shareholder  of  a  company  for  calls.  Cork  &  Bandon  Rail. 
Co.  r.  Goode,  13  Com.  B.  826;  Shepherd  v.  Hills,  26  L.  J.,  Ex.  6. 

^  See,  also,  as  to  actions  for  penalties,  31  El.  c.  5,  |  5,  as  limited  by  11  & 
12  v.,  c.  43,  ^  36;  and  Robinson  v.  Curry,  L.  R.,  7  Q.  B.  D.  465;  50  L. 
J.,  Q.  B.  561,  per  Ct.  of  App. ;  reversing  S.  C,  as  reported  in  L.  R.,  6  Q.  B. 
D.  21,  and  50  L.  J.,  Q.  B.  9;  and  overruling  Dyer  v.  Best,  1  Law  Rep.,  Ex. 
152;  25  L.  J.,  Ex.  105;  4  H.  &  C.  189,  S.  C.  *  23  &  24  V.,  c.  134,  §  5. 

5  7  &  8  v.,  c.  45,  §  2.  See  Att.-Gen.  v.  Bunce,  6  Law  Rep.,  Eq.  563,  571, 
572,  per  Malins,  V.-C. 

6  U5&6]  extended  to  Scotland,  by  7  A.,  c.  11.     See  Fost.,  C.  L.  249. 

(2964) 


CHAP,    v.]         STATUTABLE  LIMITATIONS  OF  PROSECUTIONS.  99 

court,  or  before  any  justice,  must  be  brought  or  exhibited  within 
three  years  next  after  the  date  of  the  offence  committed.'  So,  the 
prosecution  for  every  offence  against  the  night-poaching  Act,  must 
be  commenced  within  twelve  calendar  months,  if  punishable  upon 
indictment,  or  otherwise  than  upon  summary  conviction."  The 
commencement  of  the  prosecution  here  spoken  of  is  not  the  prefer- 
ring the  indictment,  but  the  laying  an  information,^  and  the  obtain- 
ing a  warrant  of  apprehension ;  or  at  least  the  issuing  a  warrant 
of  commitment,*  and,  therefore,  where  the  prisoner  was  apprehended 
and  committed  within  the  twelve  months,  though  the  indictment 
was  preferred  after  the  expiration  of  that  term,  it  was  held  that  the 
prosecution  was  commenced  in  time.^  Whether  the  preferring  an 
indictment  which  is  ignored,  would  be  deemed  such  a  commence- 
ment of  the  prosecution  as  would  warrant  the  conviction  of  the 
party  upon  a  subsequent  indictment,  preferred  more  than  a  year 
after  the  offence  was  committed,  may  admit  of  more  doubt;  and  the 
point,  though  it  has  been  discussed,  has  never  been  determined.*^ 


§  77.  Again,  every  prosedution  or  indictment  for  an  offence 
under  the  English  Marriage  Act  of  1830,^  or  under  the  "  Births  and 
Deaths  Registration  Act,  187<(,"  ^  must  be  commenced  within  three 
years  after  the  commission  of  such  offence.  So,  under  the  Act  for 
marriages  in  Ireland,  and  the  registering  of  such  marriages,  the 


1  39  &  40  v.,  c.  36,  ^  257. 

'^  9  G.  4,  e.  69,  §  4.  Now  repealed,  so  far  as  relates  to  an  offence  pnnishable 
upon  summary  conviction,  by  47  &  48  V.  c.  43,  ^  4,  andSchecI.  7  &  8  V.,  c.  29. 
See  E.  V.  Casbolt,  11  Cox,  385. 

3  See  R.  V.  Parker,  33  L.  J.,  M.  C.  135;  1  L.  &Cave,  459;  9  Cox,  475,  S.  C. 

*  But  see  li.  v.  Hull,  2  Fost.  &  Fin.   16,  per  Pollock,  C.  B. 

^  R.  V.  Brooks,  2  C.  &  Kir.  402,  by  all  the  judges;  1  Den.  217,  S.  C;  R.  v. 
Austin,  1  C.  &  Kir.  621. 

«  R.  V.  Kilminster,  7  C.  &  P.  228.  See  R.  v.  Mainwaring,  1  E.  B.  &  E. 
474. 

^  6  &  7  W.  4,  c.  85,  ?  41.  Qu. :  Whether  a  prosecution  for  making  a  fixlse 
statement  touching  the  particulars  required  to  be  registered  on  a  marriage,  must 
be  commenced  within  three  years  under  6  &  7  W.  4,  c.  86,  ^41;  R.  v.  Ld. 
Dunboyne,  3  C.  &  Kir.  1. 

«  37  &  38  v.,  c.  88,  §  46.  The  same  law  prevails  in  Ireland,  see  43&  44  V., 
c.  13,  §  36. 

(2965) 


§  66A 


100  STATUTABLE  LIMITATIONS  OF  PROSECUTIONS.  [PART   I. 

limitations  of  prosecutions  are  fixed  at  three  years  and  three  months, 
according  as  the  offences  are  punishable  upon  indictment  or  sum- 
mary conviction.^  So,  also,  no  prosecution  against  any  person  for 
making  a  false  declaration,  in  order  to  procure  a  marriage  out  of 
the  district  in  which  the  parties  dwell,  shall  take  place  after  the 
expiration  of  eighteen  calendar  months  from  the  solemnization  of 
such  marriage.^  So,  every  suit  against  a  clergyman  for  trans- 
gressing the  ecclesiastical  law,  must  be  commenced  within  two 
years  after  the  offence  was  committed;'  and  here  the  "commence- 
ment of  the  suit"  has  been  held  to  mean, — not  the  issuing  of  a 
commission  under  the  Church  Discipline  Act,  or  the  report  of  the 
commissioners,  or  the  filing  of  articles  in  the  name  of  the  bishop, 
or  even  the  service  of  such  articles  on  the  accused, — but  the  actual 
service  upon  him  of  a  citation  to  appear  at  a  certain  time  and  place 

before  a  competent  tribunal  to  answer  definite  charges.* 

* 

§  78.  Under  the  "Naval  Discipline  Act,  18G6,"  ^  no  person,  who  ^  66b 
has  not  avoided  apprehension  or  fled  from  justice,  shall  be  tried  for 
any  offence,  unless  the  trial  take  place  within  three  years  from  the 
commission  of  the  offence,-or  within  one  year  after  the  offender's 
return  to  the  United  Kingdom,  in  the  event  of  his  having  been 
abroad  during  such  period  of  three  years.  So,  in  pursuance  of  the . 
Army  Act,  1881,  no  person  shall  be  tried  or  punished  for  any 
offence  triable  by  court-martial  committed  more  than  three  years 
before  his  trial  begins,  except  mutiny,  desertion,  or  fi-audulent  en- 
listment; and  with  respect  to  the  two  last-named  offences,  unless, 
in  the  cas'e  of  desertion,  that  offence  has  been  committed  "  on  active 
service,"  the  offender  is  still  protected  from  trial,  if  he  has  sub- 
sequently for  three  years  served  in  an  exemplary  manner  in  any 
corps  of  the  regular  forces.''  But  none  of  these  provisions  affect  the 
jurisdiction  of  any  civil  courts     Again,  every  proceeding  against 


1  7  &  8  v.,  c.  81,  U  48  &  78,  Ir. ;  26  «&  27  V.,  c.  27  §  16,  Ir. 

2  3  &  4  v.,  c.  72,  §  4. 

3  3  «&  4  v.,  c.  86,  §  20.  See  Simpson  v.  Flamank,  1  Law  Rep.,  P.  C.  463; 
36  L.  J.,  Ec.  C,  28,  S.  C. 

^  Denisont'.  Ditcher,  Dea.  &Sw.,  Ec.  E.  334;  Ditcher  v.  Deni.son,  11  Moo. 
P.  C.  R.  324;  Bp.  of  Hereford  v.  T— n,  2  Roberts.  Ec.  R.  595:  4  IMoo.  P.  C, 
N.  S.  385,  S.  C. 

^  29  &  30  v.,  c.  109,  g  54.  «  44  &  45  V.,  c.  58,  §  161.  'Id. 

(2966) 


CHAP.  V,  ]  STATUTES  OF  LIMITATION.  101 

any  person  for  contravening  the  Corrupt  and  Illegal  Practices  Preven- 
tion Act,  1883,'  or  Part  12  of  "The  Municipal  Corporations  Act, 
1882,"^  must,  unless  the  party  absconds,  be  commenced  within  one 
year  of  the  date  of  the  offence,  or  within  three  months  after  the  report 
of  the  commissioners.  So,  "  in  summary  proceedings  for  ofifences 
and  fines  under  the  Municipal  Corporations  Act,  1882,  the  informa- 
tion shall  be  laid  within  six  months  after  the  commission  of  the 
oifence."^  So,  the  time  for  instituting  summary  proceedings  under 
the  Merchant  Shipping  Act,  1851,  is  limited  to  six  months,  unless 
either  of  the  parties  be  out  of  the  jurisdiction.*  Again,  under  the 
Public  Health  Acts  of  1875,  for  England,  and  1878,  for  Ireland, 
all  complaints  or  informations  must  be  made  or  laid  within  six 
months  from  the  time  when  the  matter  arose  f  under  the  Mines 
Regulation  Acts  of  1872,  the  limitation  is  fixed  at  three  months  f 
and  under  the  Factory  and  Workshop  Act,  1878,  it  ranges  from  two 
to  three  months  according  to  the  nature  of  the  offence.^  Clauses 
of  a  similar  nature  will  be  found  in  a  vast  variety  of  other  statutes,  to 
which  it  is  here  considered  unnecessary  to  make  particular  re- 
ference.^ 

§  79.  It  may  admit  of  a  serious  doubt,  whether  all,  or  indeed  ^  G7 
the  majority,  of  these  statutes  of  limitation  depend  on  the  doctrine 
of  presumption.  Some  of  them  do  so  undoubtedly,  but  others 
appear  to  rest  solely  on  the  broad  ground  of  general  expedience  and 
justice.  Interest  reipubliciie  ut  sit  finis  litium,  is  a  maxim  sanc- 
tioned by  all  civilised  states:  and  the  legislature,  in  passing  most 
of  these  statutes,  probably  never  intended  to  recognise  any  legal 

1  46  &  47  v.,  c.  51,  §  51. 

2  45  &  46  v.,  c.  50,  §  77.  This  sect,  is  now  repealed  by  47  &  48  V.,  c.  70,  g 
38,  but  is  substantially  re-enacted  by  ^  30  of  that  Act,  which  is  in  force  till  the 
end  of  1886.  M5  &  46  V.,  c.  50,  §  219,  subs.  1. 

*  17  &  18  v.,  c.  104,  ?  525  ;  Austin  v.  Olsen,  37  L.  J.,  M.  C.  34  ;  3  Law  Eep., 
Q.  B.  208  ;  and  9  B.  &  S.  46,  S.  C. 

=  38  &  39  v.,  c.  55,  ^  252  ;  41  &  42  V.,  c.  52,  ^  250,  Jr. 

6  35  &  36  v.,  c.  76,  §  63,  r.  1 ;  and  c.  77,  ^  34,  r.  1.  ^  41  V.,  c.  16,  g  91. 

8  See  11  &  12  v.,  c.  118,  §  3 ;  1  G.  1,  st.  2,  c.  5,  ?  8  ;  33  G.  3,  c.  67,  §  8 ; 
4  G.  4,  c.  76,  I  21  ;  60  G.  3  «&  1  G.  4,  c.  1,  §  7  ;  6  A.,  c.  7,  §  3;  23  &  24  V., 
c.  107,  I  32,  Ir.;  14  &  15  V.,  c  93,  |  10,  r.  4,  Jr.;  The  Merchandise  Marks 
Act,  1862,  25  &  26  v.,  c.  88,  §  18.  In  Scotland  summary  complaints  must,  in 
general,  be  instituted  "witliin  six  months  from  the  time  when  the  matter  of 
such  complaint  arose."  27  &  28  V.,  c.  53,  §  24.  See,  as  to  the  Police  Courts  in 
Edinburgh,  30  &  31  V.,  c.  58,  Sch.  §  172. 

(2967) 


102  STATUTES  OF  LIMITATION.  [PAET  I. 

presumption,  but  the  simple  object  was  to  check  protracted  litiga- 
tion. When  a  party  has  boon  in  undisputed  possession  of  property 
for  a  considerable  length  of  time,  it  is  harsh  to  deprive  him  of  that, 
which,  however  obtain,  has  now  ac{piired  the  character  of  a  vested 
interest.  No  presumption  of  a  former  grant  is  necessary  to  give 
validity  to  his  title.  It  rests  on  the  fact  of  long  uninterrupted  en- 
joyment. So,  when  a  person  has  foregone  a  claim  for  many  years, 
there  is  no  need  for  presuming  that  he  has,  in  reality,  been  satis- 
fied ;  it  is  sufficient  to  say  that  his  right  to  recover  is  lost  by  his 
own  negligence.  Indeed,  the  statute  of  James,  which  has  been 
held  not  to  discharge  the  debt,  but  merely  to  bar  the  remedy,  is 
strongly  confirmatory  of  these  views.'  Before  leaving  this  subject, 
it  may  be  well  to  notice  a  celebrated  passage  from  one  of  Lord 
Plunket's  speeches,  relative  to  the  statutes  of  limitation.  "  If 
Time,"  said  his  lordship,  "  destroys  the  evidence  of  title,  the  laws 
have  wisely  and  humanely  made  length  of  possession  a  substitute 
for  that  which  has  been  destroyed.  He  comes  with  his  scythe  in 
one  hand  to  mow  down  the  muniments  of  our  rights  ;  but  in  his 
other  hand  the  law-giver  has  placed  an  hour-glass,  by  which  he 
metes  out  incessantly  those  portions  of  duration,  which  render 
needless  the  evidence  that  he  has  swept  away."" 

§  80.^  In  other  cases,  the  common  consent  by  which  this  class  « 
of  legal  presumptions  is  established,  is  declared  through  the  medium 
of  the  judicial  tribunals,  it  being  the  common  Imv  of  the  land;  and 
these  decisions  o£  the  court  are  respected,  equally  with  the  enact- 
ments of  the  legislature,  as  authoritative  declarations  of  an  im- 
perative rule  of  law,  against  the  operation  of  which  no  averment  or 


\  Spears  v.  Hartly,  3  Esp.  81 ;  Higgins  v.  Scott,  2  B.  &  Ad.  413. 

^  See  "  Statesmen  of  the  Time  of  George  III.,"  by  Ld.  Brougham,  2rd  Ser., 
p.  227,  n.  The  above  passage  has  been  variously  rendered  in  different  publica- 
tions. In  the  case  of  Malone  v.  O'Connor,  Napier,  Ch.,  cited  it  as  follows  : — 
"Time,  with  the  one  hand,  mows  down  the  muniments  of  our  titles  ;  with  the 
other,  he  metes  out  the  portions  of  duration  which  render  these  muniments  no 
longer  necessary."  Drury's  Cas.  in  Ch.,  temp.  Napier,  644.  This  version  is 
probably  more  accurate  than  any  other,  as  it  was  furnished  to  the  Chancellor 
by  one  of  the  counsel  in  the  quare  impedit,  on  the  trial  of  which  Ld.  Plunket 
made  use  of  the  imagery  in  his  address  to  the  jury. 

^  Gr.  Ev.  I  17,  as  to  Urst  six  lines. 

'     (2968) 


68 


CHAP,  v.]       CONCLUSIVE  PRESUMPTIONS  AT  COMMON  LAW.  103 

evidence  is  received.  Thus,  for  the  purpose  of  determining  the 
legal  rights  and  liabilities  of  parties,  the  courts  conclusively  pre- 
sume,— what,  in  a  vast  number  of  cases,  must  of  course  be  contrary 
to  the  fact,' — that  every  sane  person,  above  the  age  of  fourteen,  is 
acquainted  with  the  criminal  as  well  as  the  civil,'  the  common^  as 
well  as  the  statute,*  law  of  the  land;  and  the  maxim  "ignorantia 
juris,  quod  quisque  tenetur  scire,  neminem  excusat,"  is  uniformly 
recognised  in  this  country,  as  it  formerly  was  in  ancient  Kome.^ 
Indeed,  this  doctrine  has  been  carried  so  far  as  to  include  the  case 
of  a  foreigner,  who  was  here  charged  with  a  crime,  which  was  no 
offence  in  his  own  country.®  In  like  manner,'  a  sane  man  of  the 
age  of  discretion  is  conclusively  presumed  to  contemplate  the  natural 
and  probable  consequences  of  his  own  acts;  and  therefore  the  intent 
to  kill  is  conclusively  inferred  from  the  deliberate  violent  use  of  a 
deadly  weapon.^     So,  on  an  indictment  for  cutting  with  intent  to 

1  See  Martindale  v.  Falkner,  2  Com.  B.  719,  720,  per  Maule,  J. 

2  Bilbie  v.  Lumley,  2  East,  469,  472,  per  Lcl.  Ellenborough. 

^  A  mistake  of  the  legal  effect  of  a  document  cannot  be  set  up  as  a  defence ; 
Powell  V.  Smith,  41  L.  J.,  Ch.  734,  per  Ld.  Eomilly. 

*  See  Stokes  v.  Salomons,  9  Hare,  79,  per  Turner,  V.-C;  The  Charlotta, 
1  Dods.  Adm.  392,  per  Sir  W.  Scott;  Middleton  v.  Croft,  Str.  1056,  per  Ld. 
Hardwicke. 

s  1  Russ.  C.  &  M.  25;  1  Hale,  42;  Ff  22,  6,  9. 

®  E.  V.  Esop,  7  C.  &  P.  456,  per  Bosanquet  &  Vaughan,  Js. ;  Barronet's  case, 
1  E.  &  B.  1;  Pearce  &  D.  51,  S.  C. 

^  Gr.  Ev.  §  18,  as  to  four  following  lines. 

8  1  Russ.  C.  &  M.  515—518;  R.  v.  Dixon,  3  M.  &  Sel.  15.  But  if  death 
does  not  ensue  till  a  year  and  a  day,  that  is,  a  full  year,  after  the  stroke,  it  is 
conclusively  presumed  that  the  stroke  was  not  the  sole  cause  of  the  death,  and 
it  is  not  murder.  4  Bl.  Com.  197;  Glassf.  Ev.  592.  The  doctrine  of  presump- 
tive evidence  ^v^as  familiar  to  the  jNIosaic  Code;  even  to  the  letter  of  the  prin- 
ciple stated  in  the  text.  Thus,  it  is  laid  down  in  regard  to  the  manslayer,  that 
"if  he  smite  him  with  an  instrument  of  iron,  so  that  he  die," — or,  ''if  he 
smite  him  with  throwing  a  stone  wheretoith  he  may  die,  and  he  die," — or,  "if 
he  smite  him  with  a  hand  weapon  of  wood  wherewith  he  may  die,  and  he  die; 
he  is  a  murderer."  See  Numb.  XXXV.  16,  17,  18.  Here,  every  instrument  of 
iron  is  conclusively  taken  to  be  a  deadly  weapon ;  and  the  use  of  any  such 
weapon  raises  a  conclusive  presumption  of  malice.  The  same  presumption 
arose  from  lyinff  in  ambush,  and  thence  destrojdng  another. — Id.  v.  20.  But,  in 
other  cases,  the  existence  of  malice  was  to  be  proved,  as  one  of  the  facts  in  the 
ca.se;  and  iu  the  absence  of  express  malice,  the  oflence  was  reduced  to  the 
degree  of  manslaughter,  as  at  the  common  law. — Id.  v.  21,  22,  23.  Tliis  very 
reasonable  distinction  seems  to  have  been  unknown  to  the  Gentoo  Code,  which 
demands  life  for  life,  in  all  cases,  except  where  the  culprit  is  a  Brahmin.     "  If 

(2969) 


104  CASES  "WHERE  REAL  INTENT  MUST  BE  PROVED.  [PART  I. 

do  the  prosecutor  some  grievous  bodily  harm,'  the  judges  have  held 
that  the  prisoner  was  rightly  convicted,  though  it  appeared  that  his 
real  intent  was  to  wound  another  person;"  and  an  intent  to  defraud 
a  particular  party  will  be  conclusively  presumed  on  an  indictment 
for  forgery,  provided  the  defrauding  of  such  party  would  be  the 
natural  result  of  the  prisoner's  act,  if  successful.^  The  law,  in  such 
a  case,  will  not  relax  the  rule,  even  though  it  should  be  proved  that 
the  prisoner  did  not  entertain  the  intention  charged/  In  like 
manner,  on  a  charge  of  arson  for  setting  tire  to  a  mill,  an  intent  to 
injure  or  defraud  the  mill-owners  will  be  conclusively  inferred  from 
the  wilful  act  of  firing.^  The  same  doctrine  should,  it  seems,  on 
principle,  apply  to  all  other  crimes.^ 


§  81.  Several  decisions,  however,  are  opposed  to  the  general  ^  69 
adoption  of  this  rule,  and  tend  to  show  that,  in  respect  of  those 
statutory  offences,  the  character  of  which  varies  according  to  the 
intent  with  which  they  are  perpetrated,  the  real  intention  of  the 
prisoner  must  be  left  to  the  jury  to  be  inferred  from  the  facts 
proved.  Thus,  on  an  indictment  for  cutting,'  where  the  intent 
laid  in  the  several  counts  was  to  murder,  to  disable,  and  to  do 
grievous  bodily  harm,  but  the  intent  found  by  the  jury  was  to 
prevent  being  apprehended,  the  judges  held  that  a  conviction 
could  not  be  sustained,  though  the  prisoner  had  inflicted  a 
serious  wound.^     So,  where  a  party  was  charged  with  inflicting 

a  man  deprives  another  of  life,  the  magistrate  shall  deprive  that  person  of  life." 
— Halhed's  Gentoo  Laws,  b.  xvi.  §  1,  p.  233. 

1  Under  the  repealed  Act  of  43  G.  3,  c.  58. 

2  R.  V.  Hunt,  1  Moo.  C.  C.  93;  R.  v.  Fretwell,  1  L.  &  Cave,  443;  9  Cox,  471, 
S.  C.  See,  also,  R.  v.  Smith,  Pearce  &  D.  559,  7  Cox,  5  S.  C. ;  which  was  an 
indictment  under  the  repealed  Act,  7  W.  4  &  1  V.,  c.  85,  §  3. 

3  R.  r.  Beard,  8  C.  &  P.  148,  per  Coleridge,  J.;  R.  v.  Hill,  id.  27(1,  by  all  the 
judges;  R.  v.  Cooke,  id.  582. 

*  R.  V.  Sheppard,  R.  &  R.  169;  R.  v.  Mazagora,  id.  291;  R.  v.  Geach,  9  C. 
&  P.  499.  The  prisoner  may  also  be  convicted  on  a  count  charging  the  real 
intent,  R.  v.  Han.son,  C.  &  Marsh.  334,  by  all  the  judges. 

^  R.  V.  Farrington,  R.  &  R.  207;  R.  v.  Philp,  1  Moo.  C.  C.  263. 

6  See  R.  V.  Murphy,  13  Cox,  298. 

^  Under  the  repealed  Act  of  43  G.  3,  c.  58. 

*  R.  V.  Dufiin,  R.  &  R.  365.  This  case  is  badly  reported,  and  perhaps  the 
decision  turned  upon  the  ground  that  the  attemped  apprehension  was  not 
lawful. 

(2970) 


CHAP,  v.]  PRESUMPTION  OF  CRIMINAL  INTENT.  105 

an  injury  dangerous  to  life  with  intent  to  murder,  Mr.  Justice 
Patteson  beld,  in  one  case/  that  the  jury  must  be  satisfied  that 
the  prisoner,  at  the  time  he  committed  the  assault,  had  formed  a 
deliberate  intention  of  murdering  his  victim;  but,  in  a  subsequent 
case,"  the  same  learned  judge  observed,  that  the  jury  might  infer 
such  intent  from  the  circumstance  that,  had  death  ensued,  the 
crime  would  have  amounted  to  murder.  Again,  on  an  indictment 
under  the  Act  of  9  G.  4,  c.  31,^  charging  the  prisoner  with 
shooting  at  the  prosecutor  with  intent  to  murder  him,  Mr.  Justice 
Littledale  allowed  the  jury  to  pronounce  a  verdict  in  accordance 
with  the  actual  intent,  which  was  to  kill  another  person,  and 
the  prisoner  was  consequently  acquitted.*  The  principle  of  this 
decision  has  also  been  recognised  by  Barons  Parke  and  Alderson, 
in  a  case  where  the  prisoner  was  charged,  under  7  W.  4  &  1  V., 
c.  85,  §  2,^  with  causing  poison  to  be  taken  by  the  prosecutor  with 
intent  to  murder  him,  and  it  appeared  that  the  prisoner's  real 
intention  was  to  poison  another  part} 

§  82.  Notwithstanding  these  decisions,  and  the  high  reputation  «  ^q 
of  the  judges  by  whom  they  were  pronounced,  it  is  submitted  that 
the  distinction  which  they  intend  to  establish  is  founded  on  no 
sound  principle,  but  goes  far  towards  frittering  away  one  of  the 
most  valuable  presumptions  known  to  the  criminal  law.  It  must 
also  be  borne  in  mind,  that  other  judges  of  great  experience  in 
the  administration  of  criminal  justice  have  refused  to  recognise 
this  distinction.'  But  whether  in  these  statutory  offences  the 
actual  intent  is  to  be  found  by  the  jury,  or  the  implied  intent 
is  to   be  presumed  by  the  law,  it  is   agreed  on  all  hands  to  be 


1  E.  V.  Cruse,  8  C.  &  P.  545.  ^  jj   „  jones,  9  C.  &  P.  2G0. 

^  Eepealed  by  24  &  25  V. ,  c.  95,  and  other  provisious  enacted  in  24  &  25  V., 
c.  100. 

*  E.  V.  Holt,  7  C.  &  P.  518.  The  learned  judge  observed,  in  summing  up, 
"If  this  had  been  a  case  of  murder,  and  the  prisoner  intending  to  murder  one 
person,  had,  by  mistake,  murdered  another,  he  would  be  equally  liable  to  be 
found  guilty.  The  question,  however,  may  be  different  on  the  construction 
of  this  Act  of  Parliament." 

*  Eepealed  by  24  &  25  V.,  c.  95,  and  other  provisions  enacted  in  24  &  25  V., 
c.  100.  «  E.  V.  Eyan,  2  M.  &  Eob.  213. 

'  E.  V.  Lewis,  6  C.  &  P.  161,  per  Gumey,  B. ;  E.  v.  Jarvis,  2  M.  &  Eob.  40, 
per  id. ;  ante,  p.  104,  notes  2-5. 

(2971) 


106  PRESUMPTION  OF  INTENT  AND  MALICE.  [pART  I. 

immaterial,  whether  the  intent  charged  be  the  principle  or  sub- 
ordinate motive  which  instigated  the  commission  of  the  crime. 
Thus,  where  the  jury  found  that  the  prisoner  had  wounded  the 
prosecutor  with  the  view  of  preventing  his  lawful  apprehension, 
but  that,  in  order  to  effect  that  purpose,  he  intended  to  do  him 
some  grievous  bodily  harm,  the  judges  held  that  the  conviction 
was  right  on  a  count  charging  the  latter  offence.'  The  same  rule 
has  been  recognised  where  the  immediate  object  of  the  criminal 
was  to  rob  the  party  he  wounded,  and  the  wound  was  inflicted  as 
the  means  of  affecting  the  robbery.^ 

§  83.  The  presumption  that  a  part^  intends  the  natural  con-  ^  71 
sequences  of  his  acts,  is  not  confined  to  criminal  matters,  but 
extends  equally  to  his  civil  responsibilities.  Thus,  the  deliberate 
publication  of  calumny,  which  the  publisher  knows  to  be  false, 
or  has  no  reason  to  believe  to  be  true,  raises,  in  an  action  for  libel,^ 
a  conclusive  presumption  of  malice.*  So,  if  a  party  makes  a  re- 
presentation, which  he  knows  to  be  false,  and  injury  ensues  to 
another,  the  law,  whatever  his  real  motives  may  have  been,  will 
infer  that  he  has  been  actuated  by  a  fraudulent  or  malicious  intent.^ 
So,  the  wilful  neglect  of  a  defendant  to  plead  within  the  time  ap- 
pointed by  law,  is  taken  conclusively  against  him,  as  a  confession 
of  the  plaintiff's  right  of  action.**  So,  if  a  person,  in  the  language 
of  the  Bankruptcy  Act,  "unable  to  pay  his  debts  as  they  become 
due  from  his  own  money,"  spontaneously  makes  a  transfer  or  pay- 
ment in  favour  of  any  creditor,  which  necessarily  has  the  effect  of 


1  R.  V.  Gillow,  1  Moo.  C.  C.  85. 

^  R.  V.  Bowen,  C.  &  Marsh.  149,  per  Coleridge,  J. 

3  See  6  &  7  V.,  c.  96,  I  6. 

*  Haire  v.  Wilson,  9  B.  &  C.  643;  R.  v.  Shipley,  4  Doug.  73,  177,  per 
Ashurst,  J.;  Fisher  v.  Clement,  10  B.  &  C.  475,  per  Lcl.  Tenterden; 
Baylis  v.  Lawrence,  11  A.  &  E.  925,  per  Patteson,  J.;  Rodwell  v.  Osgood,  3 
Pick.  379. 

s  Tapp  V.  Lee,  3  B.  &  P.  371;  Foster  v.  Charles,  6  Bing.  396;  7  Bing.  105; 
4  M.  &  P.  61.  741,  S.  C. ;  Pontifex  v.  Bignold,  3  M.  &  Gr.  63. 

^  Rules  of  Sup.  Ct.,  1883,  Ord.  xxvii.,  r.  2,  et  seq.  The  principle  of  this  Order 
evidently  belongs  to  general  jurisprudence.  So  in  the  Roman  law;  "Contu- 
macia  eorum,  qui  jus  dicenti  non  obteniperant,  litis  damno  coercetur. "  Dig.  lib. 
42,  t.  1,  1.  53.  "Si  citatus  aliquis  non  compareat,  habetur  pro  consentione."  3 
Masc.  de  Prob.  p.  253,  concl.  1159,  n.  26. 

(2972) 


CHAP,  v.]    PRESUMPTIONS  IN  FAVOUR  OF  JUDICIAL  PROCEEDINGS.    107 

defeating  or  delaying  bis  other  creditors,  the  law  conclusively  pre- 
faumes  that  he  made  it  with  that  intent;  and,  provided  that  he 
afterwards  is  adjudged  bankrupt  on  a  bankruptcy  petition  presented 
within  three  months  from  the  date  of  sach  act,  the  transfer  or  pay- 
ment will,  by  the  policy  of  the  bankrupt  law,  be  set  aside  as  fraudu- 
lent, though  all  fraud  in  fact  may  be  distinctly  negatived.' 


§  84  Conclusive  presumptions  are  also  made  in  favour  of  judicial  ^  40 
proceedings.  Thus,  it  is  an  undoubted  rule  of  pleading,  that  nothing 
shall  be  intended  to  be  out  of  the  jurisdiction  of  a  superior  court  but 
that  which  is  so  expressly  alleged;  and,  consequently,  the  records 
in  the  Courts  of  Counties  Palatine,  they  being  superior  courts,  need 
not  state  the  cause  of  action  to  have  arisen  within  the  jurisdiction.^ 
In  like  manner  it  will  be  conclusively  presumed  in  favour  of  all 
the  proceedings  of  either  House  of  Parliament,  that,  whenever  the 
contrary  does  not  plainly  and  expressly  appear,  the  respective  Houses 
have  acted  within  their  jurisdiction,  and  agreeably  to  the  usages  of 
Parliament,  and  the  rules  of  law  and  justice;  and,  therefore,  if  a 
warrant  be  issued  by  the  Speaker  of  the  House  of  Commons  at  the 
instance  of  the  House  for  the  arrest  of  a  witness,  that  document  need 
not  contain  any  recital  of  the  grounds  on  which  it  was  founded.^  So, 
also,  it  is  presumed,  with  respect  to  such  writs  as  are  actually  issued 
by  any  Division  of  the  High  Court  of  Justice,  that  they  are  duly 
issued,  and  in  a  case  in  which  the  court  has  jurisdiction,  unless 
the  contrary  appears  on  the  face  of  them ;  and  all  such  writs  will  of 
themselves,  and  without  any  fm-ther  allegation,  protect  all  officers 
and  others  in  their  aid  acting  under  them:  and  this  too,  although 


1  46  &  47  v.,  c.  52,  ^  48;  and  35  &  36  V.,  c.  58,  §  53,  Ir.  See  Ex  parte 
Craven,  39  L.  J.,  Bkpcy.  33;  10  Law  Eep.,  Eq.  648,  S.  ,C.;  In  re  Craven,  Ex 
parte  Tempest,  40  L.  J.  Bkpcy.  22;  Brown  v.  Kempton,  19  L.  J.,  C.  P.  169;  In 
re  Cheesebrough,  12  Law  Eep.,  Bq.  358;  40  L.  .T.,  Bkpcy.  79,  S.  C;  Smith  v. 
Cannan,  2  E.  &  B.  35;  In  re  Wood,  7  Law  Rep.,  Ch.  Ap.  302;  Ex  parte  Bailey, 
in  re  Ban-ell,  22  L.  J.,  Bkpcy.  45;  Bittlestone  v.  Cooke,  6  E.  &  B.  296:  Bell  v. 
Simpson,  26  L.  .1.,  Ex.  363;  Bills  v.  Smith,  6  B.  &  S.  314.  See,  also,  as  to  the 
avoidance  of  voluntary  settlements,  46  &  47  V.,  c.  52,  §  47;  and  35  &  36  V.,  c. 
58,  I  52,  Ir. 

^  Peacock  v.  Bell,  1  Wms.  Saund.  74,  recognised  in  Gosset  v.  Howard,  10  Q. 
B.  453. 

*  Gosset  r.  Howard,  10  Q.  B.  411,  455—459. 

(2973) 


lOS      PRESU3IPTI0NS  IN  FAVOUR  OF  JUDICIAL  PROCEEDINGS.    [PART  I. 

they  be  on  the  face  of  them  irregular,  or  even  void  in  form."  The 
respect  due  to  the  High  Court,  and  the  credit  deservedly  given  to  it, 
that  it  will  not. abuse  its  powers,  or  issue  process  except  in  due 
course,  and  in  accordance  with  the  authority  entrusted  to  it  by  the 
law,  furnish  alike  the  reason  and  the  justification  for  this  sojuewhat 
arbitrary  presumption.^  * 


§  85.^  Again  the  courts  are  bound  to  assume,  at  least  prima  §  73 
facie,  that  the  unreversed  sentence  of  a  foreisrn  or  colonial  court 
of  competent  jurisdiction  is  correct;  for  otherwise,  they  would, 
in  effect,  be  constituting  themselves  courts  of  appeal,  without 
power  to  reverse  the  judgment.*  Judicial  acts  are  also,  as  a  general 
rule,  conclusively  presumed  to  have  taken  place  at  the  earliest 
period  of  the  day  on  which  they  were  done.  A  judgment,  therefore, 
would  be  treated  as  regular,  though  it  were  signed  several  hours 
after  the  defendant  had  died.^  Still,  as  the  doctrine  rests  on  a  mere 
fiction  of  law,  it  will  not  be  recognised  so  as  to  w^ork  injustice  in  any 
particular  case.*^  Neither  will  it  apply  to  the  issuing  of  a  writ  of 
summons,  for  if  so,  a  plaintiff  could  not  commence  legal  proceedings 
till  the  day  after  the  cause  of  action  had  accrued,  and  the  defendant  in 
the  meanwhile  might  escape  out  of  the  jurisdiction.'  The  records 
also  of  a  court  of  justice,  and  indeed  all  records,  are  always  presumed 
to  have  been  correctly  made.*  No  evidence,  therefore,  will  be  ad- 
missible to  show  that  a  charter  granted  by  the  Crown  was  made  or 
delivered  at  another  time  than  when  it  bears  date;**  and  the  day 


^  Gosset  V.  Howard,  10  Q.  B.  453,  454,  citing  Countess  of  Kutlancl's  case,  6 
Eej).  54  «;  and  Parsons  v.  Loyd,  3  Wils.  341. 

^  Id.,  45G,  467.  The  elaborate  judgment  of  the  Ex.  Ch.,  as  pronounced  by 
Parke,  B.,  in  this  case,  deserves  cLise  study. 

^  Gr.  Ev.  §  12,  as  to  one  or  two  lines. 

*  Brenan's  case,  10  Q.  B.  492,  502,  per  Ld.  Denman;  Robertson  v.  Strutli,  5 
Q.  B.  942,  per  Patteson,  J. 

^  Wright  V.  Mills,  4  H.  &  N.  488;  Edwards  i-.  E.,  9  Ex.  R.  G28. 

«  Clarke  v.  Bradlaugh,  L.  R.,  7  Q.  B.  D.  151;  50  L.  J.,  Q.  B.  678,  S.  C. 

^  Id. 

*  Reed  v.  Jackson,  1  East,  355;  Ramsbottom  v.  Buckhurst,  2  M.  &  Sel. 
567,  per  Ld.  Ellenborough;  1  Inst.  260;  R.  v.  Carlile,  2  B.  &  Ad.  367— 
369,  per  Ld.  Tenterden.  "  Res  judicata  pro  veritate  accipitur."  Dig.  lib.  50, 
t.  17,  1.  207. 

»  Ladford  v.  Gretton,  Plowd.   490. 

(2974) 


CHAP,  v.]  PRESUMPTIONS  IN  FA'"^OUR  OF  JUDICIAL  PROCEEDINGS.      109 

specified  in  a  record  of  conviction  "will  be  conclusive  proof  of  the 
commission  day  of  the  assizes  at  which  the  trial  took  place.'  In 
this  last  case,  however,  the  party  against  whom  the  record  is  pro- 
duced, may  still  show,  if  necessary,  by  parol  evidence  the  actual 
day  of  the  trial ;  because,  although  by  fiction  of  law  the  whole  time 
of  the  assizes  is  considered  as  one  day,  the  court  will  judicially 
notice  that  this  legal  day  may  consist  of  many  natural  days, 
and  will  not  permit  justice  to  be  defeated  by  a  mere  arbitrary  rule.^ 
Proof  of  the  real  day  of  trial  would  not,  in  such  a  case,  contradict 
the  record,  but  would  simply  explain  it.  So  if  a  Nisi  Prius  record 
were  to  contain  two  counts,  or  distinct  causes  of  action,  and  a 
verdict  awarding  damages  to  the  plaintiff  were  entered  generally, 
parol  evidence  would  be  admissible  to  show  that  the  substantial 
damages  were  recovered  on  one  count  only.^  After  verdict,  whether 
in  a  civil  or  a  criminal  case,*  it  will  be  presumed  that  those  facts, 
without  proof  of  which  the  verdict  could  not  have  been  found,  were 
proved,  though  they  are  not  distinctly  alleged  in  the  record  ;  pro- 
vided it  contains  terms  sufficiently  general  to  comprehend  them  in 
reasonable  intendment.^  In  other  words,  the  verdict  will  cure  any 
defective  statement,  though  it  will  not  cure  the  omission  of  any 
material  averment.*^  So,  the  notes  taken  by  the  judge  at  Nisi 
Prius  are  presumed  to  be  correct,  and  no  party  is  allowed  to  raise 
before  the  Court  in  Banc  any  question  respecting  the  rejection  of 
evidence  at  the  trial,  unless  it  appears  from  these  notes  that  the 
evidence  was  formally  tendered.^ 

1  See  Thomas  v.  Ansley,  6  Esp.  80 ;  R.  v.  Page,  id.  83. 

MVhitaker  v.  Wisbey,  21  L.  J.,  C.  P.  116;  12  Com.  B.  44,  S.  C;  Roe  v. 
Hersey,  3  Wils.  274. 

3  Preston  v.  Peeke,  27  L.  J.,  Q.  B.  424 ;  1  E.  B.  &  E.  336,  S.  C. 

*  R.  V.  Waters,  1  Den.  356  ;  2  C.  &  Kir.  868,  S.  C;  R.  v.  Bowen,  13  Q.  B. 
790  ;  Heymann  v.  R.,  8  Law  Rep.,  Q.  B.  102  ;  12  Cox,  383,  S.  C;  R.  v.  Gold- 
smith, 12  Cox,  479  ;  R.  v.  Aspinall,  46  L.  J.,  M.  C.  145. 

5  Jackson  v.  Pesked,  1  M.  &  Sel.  237,  per  Ld.  Ellenborough  ;  Steph.  PI. 
162—164  ;  Spieres  v.  Parker,  1  T.  R.  141  ;  Davis  v.  Black,  1  Q.  B.  911,  912, 
per  Ld.  Denman,  C.  J.,  and  Patteson,  J.;  1  G.  &  D.  432,  S.  C. ;  Harris  v. 
Goodwyn,  2  M.  &  Gr.  405  ;  2  Scott,  N.  R.  459  ;  9  Dowl.  409,  S.  C. ;  Gokltliorpe 
V.  Hardman,  13  M.  &  W.  377.  See,  also,  Smith  v.  Keating,  6  Com.  B.  130  ; 
Kidgill  V.  Moor,  9  Com.  B.  364  ;  and  Ld.  Delamere  v.  The  Queen,  2  Law  Rep., 
H.  L.  419  ;  36  L.  J.,  Q.  B.  313,  in  Dom.  Proc,  S.  C. 

«  Bradlaugh  v.  R.,  L.  R.^  3  Q.  B.  D.  607,  622,  625,  634,  637,  642,  per  Ct.  of 
App.;  48  L.  J.,  M.  C.  5,  S.  C.  nom.  R.  v.  Bradlaugh  ;  and  14  Cox,  68. 

'  Gibbs  V.  Pike,  9  M.  &  W.  351,  360,  361,  per  Ld.  Abinger,  and  Alderson, 
B. ;  1  Dowl.  N.  S.  409,  S.  C. 

(2975) 


110  PRESUMPTIONS  IN  FAVOUR  OF  LEGAL  PROCEEDINGS.       [PAET  I. 

§  8G.  The  solemnity  of  an  act  done,  though  not  done  in  court,  ^  73^ 
will  also  sometimes  raise  a  conclusive  presumption  in  its  favour. 
Thus,  where  an  award  professes  to  be  made  de  prremissis,  the 
presumption  is  that  the  arbitrator  intended  to  dispose  finally  of 
all  the  matters  in  difference  ;  and  his  award  will  be  held  final, 
if  by  any  intendment  it  can  be  made  so.'  A  bond,  or  other 
specialty,  is  also  presumed  to  have  been  made  upon  good  con- 
sideration, so  long  as  the  instrument  remains  unimpeached."  By 
virtue,  too,  of  a  statute  of  the  present  reign,^  "every  bill  of  lading 
in  the  hands  of  a  consignee  or  indorsee  for  valuable  consideration, 
representing  goods  to  have  been  shipped  on  board  a  vessel,  shall 
be  conclusive  evidence  of  such  shipment  as  against  the  master  or 
other  person  signing  the  same,*  notwithstanding  that  such  goods 
or  some  part  thereof  may  not  have  been  so  shipped,  unless  such 
holder  of  the  bill  of  lading  shall  have  had  actual  notice  at  the  time 
of  receiving  the  same,  that  the  goods  had  not  been  in  fact  taken 
on  board ;  provided,  that  the  master  or  other  person  so  signing 
may  exonerate  himself  in  respect  of  such  misrepresentation,  by 
showing  that  it  was  caused  without  any  default  on  his  part,  and 
wholly  by  the  fraud  of  the  shipper,  or  of  the  holder,  or  of  some 
person  under  whom  the  holder  claims."  Again,  every  conveyance 
made  under  the  Act  for  facilitating  the  sale  and  transfer  of  land  in 
Ireland,  is,  by  that  statute  rendered  "  for  all  purposes  conclusive 
evidence"  that  all  previous  proceedings  leading  to  such  conveyance 
have  been  regularly  taken  f  and  every  declaration  of  title  by  the 
Landed  Estates  Court  is  as  conclusive  upon  the  rights  of  all  parties 
as  any  such  deed  of  conveyance.^ 

§  86a.  Many  contracts  are  now  made  by  one   party  delivering  to 
the  other  a  document  in  a  common  form  containing  the  proposed 

1  Harrison  v.   Creswick,  13  Com.  B.   399,  416;  Jewell  v.  Christie,  36  L.  J., 
C.  P.  168 ;  2  Law  Rep.,  C.  P.  296,  S.  C. 

2  Lowe   V.    Peers,   4  Burr.   2225;  3  St.    Ev.   930;  Story,   Bills,   §  16.     See 
post,  I  148. 

MB  &  19  v.,  c.  Ill,  ?  3. 

*  See  Meyer  v.   Dresser,   16  Com.  B.,  N.  S.  646  ;  33  L.   J.,  C.  P.  289,  S.  C; 
Jessel  V.  Bath,  36  L.  J.,  Ex.  149 ;  2  Law  Rep.,  Ex.  267,  S.  C. 

^  21  &  22  v.,  c.   72,  §  85,  Ir.     See  Power  v.   Reeves,   10  H.  of  L.  Cas.  645; 
In  re  Tottenham's  estate,  3  Law  Rep.,  Eq.  528. 

«  21  &  22  v.,  c.  72,  §  51,  Ir. ;  Billing  v.  Welch,  I.  R.,  6  C.  L.  88. 

(2976) 


CHAP,  v.]    PRESUMPTIONS  IN  FAVOUR  OF  ANCIENT  INSTRUMENTS.   Ill 

terms.  This  form  constitutes  the  ofPer  of  the  party  tendering  it. 
If  the  form  is  accepted  without  objection,  the  acceptor  is  presumed  to 
have  agreed  to  the  terms,  and,  as  a  general  rule,  is  bound  by  the 
contents,  and  this  too  whether  he  has  or  not  in  fact  read  the  docu- 
ment.' Some  exceptions,  it  is  true,  have  been  engrafted  on  this 
rule,  1st,  where  from  the  nature  of  the  transaction  the  person 
accepting  the  document  may  reasonably  suppose  that  it  contains 
no  special  terms;  2nd,  where  the  terms  are  printed  in  a  mode 
calculated  to  mislead;  and  3rd,  where  the  terms  or  conditions  are 
in  themselves  unreasonable  or  iri'elevant.^ 


§  87.^  The  law  also  recognises  a  conclusive  presumption  in  g  74 
favour  of  the  due  execution  of  ancient  deeds  and  tvills.  When 
these  instruments  are  thirty  years  old,  and  are  unblemished  by 
any  alterations,  they  are  said  to  prove  themselves;  their  bare 
production  is  sufficient;  the  subscribing  witnesses  being  pre- 
sumed to  be  dead.  This  presumption, — so  far  as  the  present 
rule  of  evidence  is  concerned, — is  not  affected  by  proof  that  the 
witnesses  are  living,*  and  it  seems,  even  actually  in  court  ;^  nor, 
in  the  case  of  wills,  by  showing  that  the  testator  died  within  the 
thirty  years.^'  But  it  must  appear  that  the  instrument  comes 
from  such  custody,  as,  though  not  strictly  proper  in  point  of  law, 
is  sufficient  to  afford  a  reasonable  presumption  in  favour  of  its 
genuineness;^  and  that  it  is  otherwise  free  from  just  ground  of 
suspicion.**  Whether,  if  the  deed  be  a  conveyance  of  real  estate, 
the  party  is  bound  first  to  show  some  acts  of  possession  under  it, 
is  a  point  not  perfectly  clear  upon  the  authorities;  but   the  weight 


1  Watkins  v.  Wymill,  L.  K.,  10  Q.  B.  D.  178;  52  L.  J.,  Q.  B.  121,  S.  C.^ 
and  cases  there  cited.  ^  Id. 

^  Gr.  Ev.  §  21,  in  great  part. 

*  Doe  V.  Burdett,  4  A.  &  E.  19. 

^  Per  Yates,  J.,  as  cited  by  Ld.  Kenyon  in  Marsh  v.  Collnett,  2  Esp.  666. 

6  Doe  V.  Wolley,  8  B.  &  C.  22;  3  C.  &  P.  702,  S.  C.  In  Jackson  v.  Blan- 
shan,  3  Johns.  292,  it  was  held  by  the  Sup.  Ct.  of  New  York  that  the  thirty 
years  must  be  computed  from  the  time  of  the  testator's  death. 

'  Doe  V.  Samples,  8  A.  &  E.  151;  Bp.  of  Meath.  v.  M.  of  Winchester,  3 
Bing.  N.  C.  200,  201,  per  Tindal,  C.  J.,  representing  all  the  judges  in  Dom. 
Proc. ;  10  Bligh,  462—464,  S.  C. 

8  Roe  V.  Rawlings,  7  East,  291. 

(2977) 


112    PRESUMPTIONS  AS  TO  ANCIENT  DOCUMENTS — ESTOPPELS.  [PAKT  I. 

of  opiuion  seems  to  be  in  the  negative,  as  will  hereafter  be  more 
fully  explained.'  It  is  also  questionable  whether  the  rule  applies 
to  an  instrument  bearing  the  seal  of  a  court  or  a  corporation; 
''  because,  although  the  witnesses  to  a  private  deed,  or  persons 
acquainted  with  a  private  seal,  may  be  supposed  to  be  dead,  or  not 
capable  of  being  accounted  for  after  such  a  lapse  of  time,  yet  the 
seals  of  courts  and  corporations,  being  of  a  permanent  character, 
may  be  proved  by  persons  at  any  distance  of  time  from  the  date  of 
the  instrument  to  which  they  are  affixed."  ' 

• 
§  88.  This  rule  is  not  confined  to  deeds  and  wills,  but  extends  o  ^^ 
equally  to  letters,^  entries,'^  receipts',  spitlement  certificates,^  and 
indeed  to  all  other  written  documents,  and  provided  that  these 
purport  to  be  thirty  years  old,  and  come  from  the  proper  custody, 
the  signatures  and  handwriting  need  not  be  proved.  In  Wynne 
V.  Tyrwhitt  the  coiirt  observed,  that  the  rule  was  founded  "  on  the 
great  difficulty,  nay,  impossibility,  of  proving  the  handwriting  of 
the  party  after  such  a  lapse  of  time."  ' 

§  89.*  Estoppels  may  be  ranked  in  this  class  of  presumptions.'  ?  ^g 
A  man  is  estopped,  when  he  has  done  or  permitted  some  act,  which 
the  law  will  not  allow  him  to  gainsay.  "  The  law  of  estoppel  is  not 
so  unjust  or  absurd,  as  it  has  been  too  much  the  custom  to  repre- 
sent." '°  Its  foundation  rests  partly  on  the  obligation  to  speak  and 
act  in  accordance  with  truth,  by  which  every  honest  man  is  bound, 
and  partly  on  the  policy  of  the  law,  which  thus  seeks  to  prevent 
the  mischiefs  that  would  inevitably  result   from  uncertainty,  con- 


1  See  IMalcolmson  v.  O'Dea,  10  H.  of  L.  Cas.  593,  &  614—616;  cited  post, 
U  665,  mQ. 

2  Per  Ld.  Tenterden,  C.  J.,  in  E.  v.  Bathwick,  2  B.  &  Ad.  648. 

'  Doe  V.  Beynon,  12  A.  &  E.  431;  4  P.  &  D.  193,  S.  C,  recognising  Bere  v. 
Ward,  2  Ph.  Ev.  204. 

*  Wynne  v.  Tyrwhitt,  4  B.  &  A.  376. 

*  Bertie  v.  Beaumont,  2  Price,  308. 

«  R.  V.  Ryton,  5  T.  R.  259;  R.  v.  Netherthong,  2  M.  &  Sel.  337.  In  these 
cases  no  proof  of  the  custody  was  given  in  evidence,  but  the  court  held  this 
to  be  immaterial.  M  B.  &  A.  377. 

8  Gr.  Ev.  I  22,  in  part. 

®  By  the  N.  York  Civ.  Code,  §  1792,  estoppels  are  abolished. 

1°  Per  Taunton,  J.,  2  A.  &  E.  291. 

(2978) 


CHAP,  v.]  ESTOPPELS  BIND  PARTIES  AND  PRIVIES.  113 

fusioD,  and  want  of  confidence,  were  men  permitted  to  deny  what 
they  had  deliberately  asserted  and  received  as  true.  The  doctrine 
of  estoppels  has,  however,  been  guarded  with  great  strictness;  not 
because  the  party  enforcing  it  is  presumed  to  be  desirous  of  exclud- 
ing the  truth; — for  the  more  reasonable  supposition  is  that  that  is 
true,  which  the  opposite  party  has  already  solemnly  admitted; — but 
because  the  estoppel  may  exclude  the  truth.  Hence  estoppel  must 
be  certain  to  every  intent;  for  no  one  shall  be  prevented  from 
setting  up  the  truth,  unless  it  be  in  plain  contradiction  to  his 
former  allegations  and  acts." 


§  90.  These  last  words  extend,  not  only  to  a  man's  own  allega-  „ 
tions  and  acts,  but  also  to  those  of  all  persons  through  u'hom  he 
claims , "  or,  to  express  the  same  sentiment  in  the  technical 
language  of  the  law,  estoppels  are  usually  binding  upon  parties 
and  privies.^  Lord  Coke  has  divided  privies  into  three  classes; 
first,  privies  in  blood,  as  heirs;  secondly,  privies  by  estate,  as 
feoffees,  lessees,  assignees,  &c. ;  and  thirdly,  privies  in  law,  "as 
the  lord  by  escheat,  the  tenant  by  the  courtesy,  the  tenant  in 
dower,  the  incumbent  of  a  benefice,"  *  husbands  suing  or  defending 
in  right  of  their  wives,^  executors  and  administrators.^  In  all 
these  and  like  cases,  the  law, — acting  upon  the  wise  principle, 
qui  sentit  commodum,  sentire  debet  et  onus, — provides,  that  the  privy 
shall  stand  in  no  better  position  than  the  party  through  whom 
he  derives  his  title:  but  that,  if  the  latter  is  not  at  liberty  to  con- 
tradict what  he  has  formerly  said  or  done,  the  former  shall  be 
subject  to  a  like  disability.'  One  exception,  however,  to  this  rule 
is  admitted  in  favour  of  those  privies,  who  would  themselves  be 
aggrieved  or  defrauded  by  the  condiict  of  the  party  through  whom 
they  claim.  For  instance,  where  a  man  executed  a  deed  with  the- 
fraudulent  intent  of  defeating  the  statutes  of  mortmain,  the  court 


'  Bowman   v.   Taylor,   4  N.  &  M.  264,   and  2   A.   &  E.   278,  289,  per  Ld. 
Denman;    Id.   291,   per  Taunton,   J.;    Lainson  v.   Tremere,   1  A.   &  E.  792; 

3  N.  &  M.  603,  S.   C. ;  Kepp  v.  Wiggett,  10  Com.   B.   53,  per  Williams,  J. ; 
Pelletreau  v.  Jackson,  11  Wend.  117;  4  Kent,  Com.  261,  n. ;  Carver  f.  Jackson,, 

4  Pet.  83.  '  B.  N.  P.  233. 
^  See  post,  §§  787 — 793,  as  to  admissions  by  privies. 

*  Co.  Lit.  352  a.  *  Outram  v.  Morewood,  3  East,  346. 

«  E.  r.  Hebden,  And.  389.  '^  Taylor  v.  Needham,  2  Taunt.  278. 

8   LAW  OF  EVID. — V.  I.  (2979) 


114  ESTOPPELS  NOT  BINDING  UNLESS  PLEADED.  [pART  I, 

held  that  his  heir-at-law  was  not  estopped  from  questioning  the 
validity  of  the  indenture,  since  his  claim  to  the  lands  was  founded, 
not  on  the  deed,  but  on  his  title  by-descent/ 


§  91.  Estoppels  are  usually  divided  into  three  clases;  namely,  §  78 
those  by  matter  of  record,  those  by  deed,  and  those  in  pais."  The 
first  class  will  be  more  conveniently  treated,  when  the  admissibility 
and  effect  of  Judgments,"  which  are  the  most  extensive  species  of 
records,  come  to  be  discussed;  but  it  may  be  here  observed,  that 
neither  a  judgment  inter  partes,  nor  a  deed,  will  operate  conclusively 
as  an  estoppel,  unless  the  matter  of  estoppel  appears  on  the  record,* 
and  is  met  by  the  pleading  which  is  now  substituted  for  the  old 
demurrer,^  nor  unless  it  has  been  exjjressly  pleaded  by  way  of 
estoppel,  at  least  where  an  opportunity  of  so  pleading  it  has  been 
afforded.®  If  a  party,  having  such  an  opportunity,  does  not  avail 
himself  of  it,  the  court  will  conclusively  presume  that  he  has  intended 
to  waive  all  benefit  derivable  from  the  estoppel,  and  will  leave  the 
jury  to  form  their  own  conclusions  from  the  facts  presented  to  them 
in  evidence.^  If,  indeed,  no  opportunity  has  arisen  for  pleading  the 
matter  of  estoppel  in  bar,  it  would  seem  on  principle  that  an  estoppel 
by  record  or  by  deed  ought  to  be  binding  when  offered  in  evidence; 

1  Doe  V.  Lloyd,  5  Bing.  N.  C.  741.     See  Smyth  v.  Wilson,  2  Jebb  &  Sy.  GGO. 
^  Co.  Lit.  352  a:  2  Smith,  L.  C.  657.  =>  See  post,  §  1667,  et  seq. 

*  See  Robinson  v.  Robinson,  L.  R.  2  P.  D.  75. 

*  Rules  of  Sup.  Ct.,  1883,  Ord.  XXV.,  rr.  1,  2;  Bradley  v.  Beckett,  7  M.  & 
Gr.  994. 

«  2  Smith,  L.  C.  670,  674  &  683.  The  whole  of  Mr.  Smith's  note,  from 
p.  656  to  726,  should  be  carefully  perused.  It  contains  an  elaborate  ex- 
position of  a  very  difficult  branch  of  the  law.  See  also  Trevivan  v.  Law- 
rence, 1  Salk.  276;  2  Smith,  L.  C.  654,  S.  C. ;  Magrath  v.  Hardy,  4  Bing.  N. 
C.  782. 

'  Outram  v.  Morewood,  3  East,  346,  365;  Vooght  v.  Winch,  2  B.  &  A.  662; 
Doe  V.  Huddart,  2  C.  M.  &  R.  316;  5  Tyr.  846,  S.  C;  Doe  v.  Seaton, 
2  C.  M.  &  R.  732,  Parke,  B.;  Nowlan  v.  Gibson,  12  Jr.  Law  R.  5,  8—12; 
Matthew  v.  Osborne,  13  Com.  B.  919;  Doe  v.  Wright,  10  A.  &  E.  763; 
1  P.  &  D.  673,  S.  C;  Magrath  v.  Hardy,  4  Bing.  N.  C.  782;  6  Scott,  627; 
S.  C,  as  to  estoppels  by  matter  of  record: — Wilson  v.  Butler,  4  Bing.  N.  C. 
748;  Bowman  v.  Rostron,  2  A.  &  E.  295;  4  N.  &  M.  452,  S.  C. ;  Young  t). 
Kaincock,  7  Com.  B.  310;  Carpenter  v.  Buller,  8  M.  &.  W.  212;  Potts  v. 
Nixon,  5  I.  R.,  C.  L.  45,  as  to  estoppel  by  deed: — and  Freeman  v.  Cooke, 
per  Parke,  B.,  2  Ex.  R.  662;  6  Dowl.  &  L.  189,  S.  C,  as  to  both  kinds  of 
estoppel. 

(2980) 


CHAP,  v.]    NO  ESTOPPEL  FROM  SETTING  UP  ILLEGALITY.        115 

and  such  is  the  actual  rule  in  some  of  the  United  States/  though 
in  this  country  the  point  has  not  yet  been  expressly  decided.^ 


§  92.  With  respect,  also,  to  estoppels  in  jjais,  no  doubt  can  be  |  79 
entertained,  but  that  they,  in  general,  need  not  be  pleaded  in  order 
to  make  them  obligatory;  as,  for  instance,  if  a  man  were  to  repre- 
sent another  as  his  agent,  in  order  to  procure  a  person  to  contract 
with  him  as  such,  and  this  person  were  so  to  contract,  the  contract 
would  bind  the  principal  equally  with  one  made  by  himself,  and  no 
form  of  pleading  could  leave  such  a  matter  at  large,  and  enable  the 
jury  to  treat  it  as  no  contract.'  So,  if  an  indorsee  were  to  sue  an 
acceptor  on  a  bill  payable  to  the  order  of  the  drawer,  and  the  de- 
fendant were  to  plead  that  the  drawer  had  no  authority  to  indorse, 
the  plaintiff,  though  he  might  reply  the  estoppel,*  would  not  be  forced 
to  do  so,  but  he  might  by  his  pleading  raise  the  point  of  law,  that 
the  statement  of  defence  disclosed  no  legal  answer  to  the  action.^ 

§  93.  It  seems  now  clearly  settled  that  a  party  is  not  estopped  by  g  80 
his  deed  from  avoiding  it  by  proving  that  it  was  executed  for  a  frau- 
dulent, illegal,  or  immoral  purpose.  In  one  case,^  indeed,  where  a 
man,  in  order  to  give  his  brother  a  colourable  qualification  to  kill 
game,  had  conveyed  some  lands  to  bim,  the  court  held  that  the 
grantor's  widow  could  not  avoid  this  conveyance  in  an  action  of  eject- 
ment brought  against  her  by  the  brother;  and,  in  the  subsequent  case 
of  Prole  V.  Wiggins,  Sir  Nicholas  Tindal  observed  that  this  decision 
rested  on  the  fact  that  "the  defence  set  up  was  inconsistent  with 
the  deed.'"  The  case,  however,  can  scarcely  be  supported  by  this 
circumstance,  for  in  an  action  of  ejectment  by  the  grantee  of  an 
annuity,  to  recover  premises  on  which  it  was  secured,  the  grantor 
was  allowed  to  show  that  the  premises  were  of  less  value  than  the 

'  See  Howard  v.  Mitchell,  14  Mass.  241;  Adams  v.  Barnes,  17  Mass.  365. 

"^  R.  V.  Blakemore,  2  Den.  410.  See  R.  v.  Haughton,  1  E.  &  B.  512;  Ld. 
Fevereham  v.  Emerson,  11  Ex.  R.  385;  and  R.  v.  Hutehins,  L.  R.  5  Q.  B.  D. 
353;  49  L.  J.,  M.  C.  64,  S.  C.  This  last  case  was  reversed  on  another  point 
by  the  Court  of  App.     L.  R.  6  Q.  B.  D.  300;  50  L.  J.,  M.  C.  35,  S.  C. 

2  Freeman  v.  Cooke,  2  Ex.  R.  662;  5  Dowl.  &  L.  189,  S.  C,  per  Parke,  B. 

*  Sanderson  v.  Collman,  4  M.  &  Gr.  209. 

*  Hallifax  r.  Lyle,  3  Ex.  R.  446;  6  Dowl.  &  L.  424,  S.  C. 

«  Doe  V.  Roberts,  2  B.  «&  A.  367.  See  also  Phillpotts  v.  Phillpotts,  10  Com. 
B.  85.  '  3  Bing.  N.  C.  235. 

(2981) 


116  ESTOPPEL  BY  DEED — ILLEGAL  COVENANTS.  [PABT  I. 

annuity,  and,  consequently,  that  the  deed  required  enrolment, 
although  he  had  expressly  covenanted  in  the  deed  that  the  premises 
were  of  greater  value.'  So,  also,  where  a  bond  has  been  given,  or 
a  covenant  made,  for  an  illegal  consideration,  the  obligor  or  cove- 
nantor is  not  debarred  from  avoiding  the  instrument  by  pleading 
and  proving  the  illegality;^  and  this  too,  though  a  legal,  but 
untrue,  consideration  is  stated  on  the  face  of  the  deed.^  Indeed, 
the  better  opinion  seems  to  be,  that  where  both  parties  to  an  in- 
denture either  know,  or  have  the  means  of  knowing,  that  it  was 
executed  for  an  immoral  purpose,  or  in  contravention  of  a  statute, 
or  of  public  policy,  neither  of  them  will  be  estopped  from  proving 
those  facts  which  render  the  instrument  void  ab  initio;*  for  although 
a  party  will  thus,  in  certain  cases,  be  enabled  to  take  advantage  of 
his  own  wrong,^  yet  this  evil  is  of  a  trifling  nature  in  comparison 
with  the  flagrant  evasion  of  the  laAv,  that  would  result  from  the 
adoption  of  an  opposite  rule.®  It  seems  scarcely  necessary  to  add 
that  a  party  is  not  estopped  by  his  deed,  if  he  executed  it  while, 
from  duress,  infancy,  or  other  cause,  he  was  incapable  of  making  a 

^  Doe  V.  Ford,  3  A.  &  E.  649.  In  this  case  a  question  was  raised  whether  a 
covenant,  under  any  circumstances,  is  such  a  declaration  as  to  estop  a  party  from 
afterwards  disputing  the  fact  covenanted  for,  but  the  point  was  left  undecided. 
In  America  a  party  may,  in  some  cases,  be  estopped  by  a  covenant.  Tims  a 
covenant  of  warranty  estops  the  grantor  from  setting  up  an  after-acquired  title 
against  the  grantee,  for  it  is  a  perpetually  operating  covenant;  Terrett  v. 
Taylor,  9  Cranch,  43;  Jackson  v.  Matsdorf,  11  Johns.  97;  Jackson  v.  Wright, 
14  Johns.  193;.  M' Williams  v.  Nisby,  2  Serg.  &  R.  515;  Somes  v.  Skinner, 
3  Pick.  52;  but  he  is  not  estopped  by  a  covenant,  that  he  is  seised  in  fee  and 
has  good  right  to  convey;  Allen  v.  Say  ward,  5  Greenl.  227;  for  any  seisin  in 
fact,  though  by  wrong,  is  sufficient  to  satisfy  this  covenent,  its  import  being 
merely  this,  that  he  has  the  seisin  in  fact,  at  the  time  of  conveyance,  and 
thereby  is  qualified  to  transfer  the  estate  to  the  grantee. 

2  Prole  V.  Wiggins,  3  Bing.  N.  C.  230;  3  Scott,  607,  S.  C;  Collins  v. 
Blantern,  2  Wils.  341;  1  Smith,  L.  C.  310,  S.  C;  Gas  Light  &  Coke  Co. 
V.  Turner.  5  Bing.  N.  C.  666;  affd.  in  Ex.  Ch.,  6  Bing.  N.  C.  324;  Stratford 
&  Moreton  R.  Co.  v.  Stratton,  2  B.  &  Ad.  518;  Hill  i'.  Manch.  Waterw.  Co., 
id.  552,  553;  Benyon  v.  Nettleford,  3  M.  &  Gord.  94;  Horton  v.  Westm. 
Improve.  Comrs.,  7  Ex.  R.  780. 

3  Paxton  V.  Popham,  9  East,  419.  *  Id. 

^  Doe  V.  Ford,  3  A.  &  E.  654,  per  Ld.  Denman;  Doe  v.  Ho  wells,  2  B.  & 
Ad.  747. 

«  Benyon  v.  Nettlefold,  20  L.  J.,  Ch.  186,  187;  3  M.  &  Gord.  102,  S.  C. 
See  Mallalieu  v.  Hodgson,  16  Q.  B.  689;  Bowes  v.  Foster,  2  H.  &  N.  779; 
Taylor  v.  Bowers,  46  L.  J.,  Q.  B.  39. 

(2982) 


CHAP,  v.]  PERSONS  ACTING  IN  DIFFERENT  CAPACITIES.  117 

valid  contract,  or  if  he  was  deceived  by  the  fraudulent  misrepresen- 
tations or  acts  of  other  parties.' 


§  94  At  one  time  it  was  thoughj;,  that  trustees  acting  for  the  ^  81 
benefit  of  the  public  would  not  be  estopped  from  disputing  the 
validity  of  their  deeds,  because,  if  they  were,  the  innocent  parties, 
on  whose  behalf  they  were  acting,  might  be  seriously  injured.^ 
This  doctrine,  however,  is  now  distinctly  confined  to  those  cases 
in  which  the  trustees  for  the  public  have,  in  their  dealings  with 
another  party,  violated  a  public  statute,  the  contents  of  which  are 
presumed  to  be  known  to  such  party.  Therefore,  where  a  bridge 
Act  authorised  commissioners  to  mortgage  the  tolls,  and  enacted 
that  the  mortgagees  should  have  no  preference  by  reason  of  priority, 
the  court  held  that,  in  an  action  of  ejectment  brought  by  a  mort- 
gagee of  the  tolls  against  the  commissioners,  the  defendants  were 
estopped  from  setting  up  the  fact  of  an  earlier  mortgage  to  defeat 
the  legal  estate  of  the  lessor  of  the  plaintifP.  In  this  case,  no  pre- 
sumption could  be  made  as  to  the  mortgagee's  knowledge  of  the 
fact  that  a  previous  mortgage  had  been  made  ;  and  the  judges  con- 
sidered that  there  was  no  authority  for  holding,  that  trustee  for  a 
public  purpose  were  in  any  peculiar  state  of  protection  on  such 
a  point.  ^ 

§  95.  Though  an  estoppel  may  bind  a  person  acting  in  one  «  g2 
capacity,  it  does  not  necessarily  follow  that  it  will  have  a  similar 
effect,  when  such  party  is  sustaining  a  totally  different  character.* 
Thus,  where  an  executor  de  son  tort  verbally  agreed  with  the  land- 
lord of  the  intestate  to  deliver  up  the  premises  demised,  and  after- 
wards took  out  letters  of  administration,  he  was  held  not  concluded 
from  bringing  an  action  of  ejectment  against  the  landlord,  who  had 


1  Hayne  v.  Maltby,  3  T.  R.  438. 

2  Fairtitle  v.  Gilbert,  2  T.  R.  169  ;  Doe  v.  Hares,  4  B.  &  Ad.  440,  per 
Littledale,  J. 

«Doe  V.  Home,  3  Q.  B.  757,  766,  767;  R-  i'.  White,  4  Q.  B.  Ill,  112; 
Horton  v.  Westm.  Improv.  Comrs.,  7  Ex.  R.  780. 

*  2  Smith,  L.  C.  667  ;  Robinson's  case,  5  Rep.  32  b  ;  Com.  Di.  Estoppel, 
C;  2  Co.  Lit.  365  h;  Smyth  v.  Wilson,  2  Jebb  &  Sy.  660  ;  Leggott  v.  Gt.  N. 
Ry.  Co.,  L.  R.,  1  Q.  B.  D.  599;  45  L.  J.,  Q.  B.  557,  S.  C.  See  Bennett  tJ. 
Gamgee,  46  L.  J.,  Ex.  33  ;  S.  C.  aff.  on  app.  id.  204. 

(2983) 


118  ESTOPPEL  BY  DEED — MERE  DESCRIPTION.  [PABT  I. 

actually  obtained  possession  under  the  agreement.'  But  if  "an 
heir  apparent,  having  only  the  hope  of  succession,  conveys,  during 
the  life  of  his  ancestor,  an  estate,  which  afterwards  descends  upon 
him,  although  nothing  passes  at  that  time,  yet,  when  the  inheri- 
tance descends  upon  him,  he  is  estopped  to  say  that  he  had  no 
interest  at  the  time  of  the  grant."^  The  distinction  between  these 
two  cases  appears  to  be  this,  that  in  the  former,  the  party  not 
estopped  was  acting  for  the  benefit  of  others  ;  in  the  latter,  the 
party  estopped  was  sui  juris. 

§  96.  In  regard  to  estoppels  by  deed,  a  party  is  not  prevented  ^  §3 
from  disputing  the  correctness  of  that  which  is  not  an  essential 
averment,  but  is  mere  description;  such  for  instance,  as  the  date 
of  the  deed ;  the  quantity  of  land  ;  its  nature,  whether  arable  or 
meadow  ;  and  the  like  ;  for  these  statements  are  but  incidental  and 
collateral  to  the  principal  matter,  and  may  be  supposed  not  to  have 
received  the  deliberate  attention  of  the  parti es/*  It  seems,  however, 
that  in  this  country,  if  a  deed  of  conveyance  distinctly  states  in  the 
operative  part  that  the  consideration  money  has  been  received, 
and  the  estoppel  is  properly  pleaded,*  the  fact  of  payment,  and  the 
amount  paid,  are  conclusively  presumed ;"  although  a  receipt  indorsed 
upon  the  deed  will  not  in  itself  amount  to  an  estoppel.'*  In  America,' 
though  the  party  is  estopped  from  denying  the  conveyance,  and  that 
it  was  for  a  valuable  consideration,  the  weight  of  authority  is  in 
favour  of  treating  the  statement  in  the  deed   as   only  prima  facie  • 

»  Doe  V.  Glenn,  1  A.  &  E.  49  ;  3  N.  &  M.  837,  S.  C.  See,  also,  Middleton's 
case,  5  Rep.  21  ;  Metters  v.  Brown,  32  L.  J.,  Ex.  138  ;  1  H.  &  C.  686,  S.  C; 
Lyons  v.  Mulderry,  Hayes,  R.  530  ;  Kirwan  v.  Gorman,  9  Ir.  Eq.  R.  154 ; 
Johnson  v.  Warwick,  25  L.  J.,  C.  P.  102. 

^  Hayne  v.  Maltby,  3  T.  R.  441,  per  Ld.  Kenyon. 

3  Com.  Di.  Estoppel,  A.  2 ;  Yelv.  227,  by  Metcalfe,  n.  1 ;  Doddington's 
case,  2  Co.  33 ;  Shipworth  v.  Green,  8  Mod.  311  ;  1  Str.  610,  S.  C. 

*  Potts  V.  Nixon,  I.  R.,  5  C.  L.  45. 

^  Shelly  r.  AVright,  Willes,  9 ;  Cossens  v.  Cossens,  id.  25  ;  Rowntree  v. 
Jacob,  2  Taunt.  141,  in  which  last  case  there  were  highly  suspicious  circum- 
stances tending  to  show  that  the  consideration  money  had  not  in  fact  been 
paid  ;  Baker  v.  Dewey,  1  B.  &  C.  704  ;  Lampon  v.  Corke,  5  B.  &  A.  606  ; 
Hill  V.  Manch.  Waterw.  Co.,  2  B.  &  Ad.  544.  See  Smith  r.  Battams,  26  L.  J., 
Ex.  332 ;  also  Gresley  r.  Mousley,  3  De  Gex,  V.  &  J.  433. 

«  Lampon  v.  Corke,  5  B.  &  A.  611,  per  Holroyd,  J.,  612,  per  Best,  J.; 
Straton  v.  Rastall,  2  T.  R.  366. 

^  Gr.  Ev.  g  26,  n.,  almost  verbatim. 

(2984) 


CHAP,  v.]         ESTOPPELS — RECITALS  IN  DEEDS.  119 

evidence  of  the  amount  paid,  in  an  action  of  covenant  by  the  grantee 
to  recover  back  the  consideration,  or  in  an  action  by  the  grantor,  to 
recover  the  price  which  is  yet  unpaid.' 

§  97.  The  question  how  far  parties  are  bound  by  recitals^  in  x  §4 
deeds  has  of  late  years  been  much  discussed  ;  and  the  doctrine  of 
Lord  Coke,  that  "  a  recital  doth  not  conclude,  because  it  is  no  direct 
afi&rmation,"^  has  been  expressly  overruled.  The  law  on  this 
subject  has  been  ably  expounded  by  Baron  Parke,  in  Carpenter  v. 
Buller.*  "  If  a  distinct  statement  of  a  particular  fact  is  made  in 
the  recital  of  a  bond,  or  other  instrument  under  seal,  and  a  contract 
is  made  with  reference  to  that  recital,  it  is  unquestionably  true, 
that,  as  between  the  parties  to  that  instrument,  and  in  an  action 
upon  it,  it  is  not  competent  for  the  party  boxind^  to  deny  the  re- 
cital, notwithstanding  what  Lord  Coke  says  on  the  matter  of  recital 
in  Coke  Littleton,  352  b  ;  and  a  recital  in  instruments  not  under 
seal  may  be  such  as  to  be  conclusive  to  the  same  extent.  A  strong 
instance  as  to  a  recital  in  a  deed,  is  found  in  the  case  of  Lain  son  v. 
Tremere,®  where,  in  a  bond  to  secure  the  payment  of  rent  under  a 
lease  stated,  it  was  recited  that  the  lease  was  at  a  rent  of  170Z.,  and 
the  defendant  was  estopped  from  pleading  that  it  was  140/.  only, 
and  that  such  amount  had  been  paid.  So,  where  other  particular 
facts  are  mentioned  in  a  condition  to  a  bond,  as  that  the  obligor  and 
his  wife  should  appear,  the  obligor  cannot  plead  that  he  appeared 
himself,  and  deny  that  he  is  married,  in  an  action  on  the  bond.'    All 

^  The  principal  cases  will  be  found  refeiTed  to  in  the  early  editions  of  this 
Work. 

^  As  to  the  effect  of  recitals  in  a  deed  which  has  been  tendered  for  execution 
but  not  executed,  see  Bulley  v.  Bulley,  44  L.  J.,  Ch.  79. 

2  Co.  Lit.  352  6. 

*  8  M.  &  W.  212.  As  to  other  cases  where  a  recital  has  been  held  con- 
clusive, see  Bowman  v.  Taylor,  2  A.  &  E.  278  ;  Hills  v.  Laming,  9  Ex.  R. 
256  ;  Lainson  v.  Tremere,  1  A.  &  E.  792  ;  3  N.  &  M.  603,  S.  C  ;  E.  v.  Stamper, 
1  Q.  B.  123  ;  Hill  v.  Manch.  Waterw.  Co.,  2  B.  &  Ad.  544  ;  Pargeter  v.  Harris, 
7  Q.  B.  708.  See,  also,  Bayley  v.  Bradley,  5  Com.  B.  396  ;  Young  v.  Raincock, 
7  Com.  B.  310  ;  Horton  v.  Westm.  Improve.  Comrs.,  7  Ex.  R.  780  ;  and 
Hungerford  v.  Beecher,  5  Ir.  Eq.  R.,  N.  S.  417.  But  see  Lindsays.  E.  of  Wick- 
low,  I.  R.  7  Eq.  192. 

*  Even  though  she  be  a  married  woman,  Semble  per  Ld.  J.  James,  in  Jones 
V.  Frost,  in  re  Fiddey,  7  Law  Rep.,  Ch.  App.  773. 

M  A.  &  E.  792  ;  3  N.  &M.  603,  S.  C.  See  Brooke  v.  Haymes,  6  Law  Rep., 
Eq.  25  '  1  Roll.  Abr.  873,  c.  25, 

(2985) 


120  WHEN  RECITALS  OPERATE  AS  ESTOPPELS.  [p^KT  I, 

the  instances  given  in  Com.  Dig.,  Estoppel,  A.  2,  under  the  bead 
of  '  Estoppel  by  Matter  of  Writing  '  (except  one  which  relates  to  a 
release),  are  cases  of  estoppel  in  actions  on  the  instrument  in  which 
the  admissions  are  contained.  By  his  contract  in  the  instrument 
itself  a  party  is  assuredly  bound,  and  must  fulfil  it.  But  there  is 
no  authority  to  show  that  a  party  to  the  instrument  would  be  es- 
topped, in  an  action  by  the  other  party,  not  founded  on  the  deed, 
and  ivholly  collateral  to  it,'  to  dispute  the  facts  so  admitted,  though 
the  recitals  would  certainly  be  evidence  ;  for  instance,  in  another 
suit,  though  between  the  same  parties,  where  a  question  should 
arise  whether  the  plaintiff  held  at  a  rent  of  170Z.  in  the  one  case,  or 
was  married  in  the  other  case,  it  could  not  be  held  that  the  recitals 
in  the  bond  were  conclusive  evidence  of  these  facts.  Still  less  could 
it  be  so  held,  if  the  matter  alleged  in  the  instrument  were  wholly 
immaterial  to  the  contract  therein  contained  ;  as,  for  instance, 
suppose  an  indenture  or  bond  to  contain  an  unnecessary  description 
of  one  of  the  parties  as  assignee  of  a  bankrupt,  overseer  of  the  poor, 
or  as  filling  any  other  character,  it  could  not  be  contended  that  such 
statement  would  be  conclusive  on  the  other  party,  in  any  other  pro- 
ceeding between  them." 


§  98.  From  this  passage  it  would  appear  that,  to  make  a  recital    g  35 
operate  as   an  estoppel,  there   must  be,  first,  a   distinct  statement^ 
of  some  material  particular*  fact  ;  secondly,  a  contract  made  with 
reference  to  such  statement  ;  *  and,  thirdly,  either  an  action  directly 


1  See  S.-East.  Ey.  Co.  v.  Warton,  31  L.  J.,  Ex.  515. 

2  See  Kepp  y.  Wiggett,  10  Com.  B.  35. 

^  In  Carpenter  v.  Buller,  8  M.  &  W.  213,  the  court  were  strongly  inclined 
to  think  that,  in  a  deed  relating  to  an  adit,  a  recital  that  certain  neighbour- 
ing lands,  through  which  the  adit  did  not  pass,  belonged  to  A.  B.,  was  an 
immaterial  matter,  which  a  party  to  the  deed  was  not  estopped  from  denying. 
The  point,  however,  was  not  directly  decided,  as  the  admission  was  held  in- 
conclusive on  other  grounds. 

*  As  to  the  distinction  between  generality  and  particularity,  see  Com.  Dig., 
Estoppel,  A.  2,  and  notes  to  Rainsford  v.  Smyth, Dyer,  196  a. 

^  In  Stronghill  v.  Buck,  14  Q.  B.  787,  the  court  thus  stated  the  law  : — 
"Where  a  recital  is  intended  to  be  a  statement,  Avhich  all  the  parties  to  the 
deed  have  mutually  agreed  to  admit  as  true,  it  is  an  estoppel  upon  all.  But 
where  it  is  intended  to  be  the  statement  of  one  party  only,  the  estoppel  is 
confined  to  that  party,  and  the  intention  is  to  be  gathered  from  construing 

(2986) 


CHAP,    v.]  ESTOPPELS  MUST  BE  RECIPROCAL.  121 

founded  on  the  instrument  containing  the  recital,  or  one  which 
is  brought  to  enforce  the  rights  arising  out  of  such  instrument.' 
In  the  event  of  these  requisites  being  satisfied,  it  would  further 
seem,  that  the  doctrine  may,  in  some  cases,  be  extended  to  in- 
struments not  under  seal.  In  all  cases  of  estoppel  by  recital,  the 
matter  recited  requires  no  proof;  since  the  recital  is  not  offered 
as  secondary,  but  as  primary  evidence,  which  cannot  be  contro- 
verted, and  which  forms  a  muniment  of  title.  This  rule,  however, 
only  applies  to  so  much  of  a  deed  as  is  actually  recited ;  and  there- 
fore if  it  becomes  necessary  to  rely  on  any  other  part  of  such  deed, 
it  must  be  produced  and  proved  in  the  regular  way." 


§  99  Returning  from  the  limited  question  of  recitals  to  the  §  86 
general  doctrine  of  estoppels,  it  is  important  to  bear  in  mind  this 
rule  :  that  every  estoppel  must  he  reciprocal ;  that  is,  it  must  bind 
both  parties,  since  a  stranger  can  neither  take  advantage  of  an 
estoppel,  nor  be  bound  by  it.^  Thus,  where  a  party,  possessed 
of  chambers  in  Lincoln's  Inn,  which  he  held  as  tenant-at-will 
under  the  benchers,  recited  in  a  deed,  by  which  he  conveyed  his 
interest  to  A.,  that  he  was  seised  of  these  chambers  for  life,  and 
subsequently  surrendered  them  to  the  benchers,  who  admitted  B. 
as  tenant,  the  court  held  that  B.,  in  defending  an  action  of  eject- 
ment brought  against  him  by  A.,  was  not  estopped  from  denying 
that  the  surrenderor  was  seised  for  life.*  So,  where  a  tenant  took 
certain  lands  from  the  assignees  of  a  bankrupt,  by  a  deed  in 
which  they  were  described  as  freehold,  he  was  held  not  estopped, 
as  against  the  bankrupt's  wife,  who  claimed  dower,  from  proving 
that  they  were  in  fact  leasehold.^  So,  a  conviction  on  an  indict- 
ment for  obstructing  a  public  highway  cannot  be  pleaded  as  an 
estoppel,  in  an  action  brought  by  the  party  convicted  against  a 


the  instrument. "     See,  also,  Young  t^.  Raincock,  7  Com.  B.  310;  Blackball  v. 
Gibson,  2  L.  R.,  Ir.  49. 

1  Wiles  V.  Woodward,  5  Ex.   R.  557,   563;  Carter  v.  Carter,  27  L.  J.,  Cb.  74, 
84,  85,  per  Wood,  V.-C;  Eraser  r.  Pendlebury,  13  L.  J.,  C.  P.  1. 

*  Gillett  V.  Abbott,  7  A.  &  E.  783;  3  N.  &  P.  24,  S.  C. 
'  Co.  Lit.  352  a. 

*  Doe  t'.  Errington,  6  Bing.   N.  C.  79. 

*  Gaunt  V.  Wainman,  3  Bing.  N.  C.  69. 

(2987) 


122  ESTOPPELS    BY    DEED ESTOPPELS    IN    PAIS.  [PAKT  I. 

third  person  for  using  the  way.'  Again,  the  grantee,  or  lessee 
of  a  deed-poll,  is  not,  in  general,  estopped  from  gainsaying  any- 
thing mentioned  in  the  deed;  for  it  is  the  deed  of  the  grantor  or 
lessor  only;  yet  if  such  grantee  or  lessee  claim  title  under  the 
deed,  he  is  hereby  estopped  to  deny  the  title  of  the  grantor."  An 
exception  to  this  rule  requiring  reciprocity  in  estoppels  would 
perhaps  be  recognised  in  the  case  of  deeds-poll,  because  in  these 
instruments  one  party  only  is  intended  to  be  bound,  and  as  he  has 
executed  a  deed  with  the  same  solemnities  as  an  indenture,  no 
valid  reason  can  be  urged  why  the  doctrine  of  estoppel  should  not 
apply  to  him.'' 


§  100.  A  further  rule  with  respect  to  estoppels  by  deed  is  this,  |  87 
that  a  deed  which  can  take  effect  by  interest  shall  not  be  construed 
to  take  effect  by  estoppel.*  Thus,  if  a  lessor  has  any  interest  in  the 
demised  premises,  even  though  it  be  for  a  less  period  than  he  pro- 
fesses to  grant,  the  lease  shall  not  work  by  estoppel,  but  shall  enure 
to  the  extent  of  the  lessor's  interest,  and  no  further.'^  But  if  a 
person,  having  no  title  whatever,  makes  a  lease  by  indenture,  this 
will  estop  the  parties  to  the  deed  from  alleging  the  lessor's  want  of 
title  during  the  continuance  of  the  lease;  and  if  the  lessor  subse- 
quently pui'chases  the  land,  or  otherwise  obtains  an  interest  in  it, 
the  lease,  which  was  originally  a  lease  by  estoppel,  will  be  converted 
into  a  lease  in  interest,  and  the  heir  or  assignee  of  the  lessor  will 
be  bound  thereby,  as  well  as  the  lessee  and  his  assignees.*^ 

§  101.  The  most  ordinary  instance  of  estoppel  by  matter  in  pais,''    §  88 
is  the  well-established  rule,  that  a  tenant,  during  his  possession  of 


1  Petrie  v.  Nuttall,  11  Ex.  R.  .569. 

2  Co.  Lit.  363  h;  Goddard's  case,  4  Co.  44. 

=*  2  Smith,  L.  C.  660;  Bac.  Ab.,  tit.  Leases,  O. 

*  Doe  V.  Barton,  11  A.  &  E.  311,  per  Patteson,  J. 

^  Id.  in  argument;  Co.  Lit.  45  a.  47  ft;  Doe  v.  Seaton,  2  C.  M.  &  R.  730 
per  Parke,  B. ;  Walton  v.  Waterhouse,  3  Wms.  Saund.  417  a,  et  seq. 

8  Webb  V.  Austin,  7  M.  &  Gr.  701 ;  Sturgeon  v.  Wingfield,  15  M.  &  W. 
224. 

'  As  to  "judicial  admissions,"  and  "  admissions  acted  upon,"  which  some- 
times are  classed  among  estoppels  in  pais,  see  post,  §^  772,  783,  820,  et  seq., 
839,  et  seq. 

(2988) 


CHAP,  v.]  ESTOPPEL  IN  PAIS — LANDLORD  AND  TENANT.  123 

premises,  shall  not  deny  that  the  landlord,  under  whom  he  has 
entered,  or  from  whom  he  has  taken  a  renewal  of  his  holding,'  and 
to  whom  he  has  paid  rent,  had  title  at  the  time  of  his  admission.^ 
Thus,  whether  the  landlord  brings  ejectment,  or  an  action  for  rent 
or  for  use  and  occupation  against  his  tenant,  the  defendant  can 
neither  set  up  the  superior  title  of  a  third  person,^  nor  show  that 
the  landlord  has  no  title;  as,  for  instance,  if  the  plaintiff  be  an 
incumbent,  by  giving  evidence  of  a  simoniacal  presentation,*  or,  if 
he  be  a  devisee,  by  proving  that  the  devisor  was  incapable  of  making 
a  will.^  In  this  last  case,  indeed,  the  evidence  might  be  admis- 
sible as  part  of  the  tenant's  case,  if  he  could  show  that  the  party 
claiming  as  devisee  had  been  guilty  of  fraud  in  making  the  will,  and 
in  falsely  representing  it  to  him  as  a  valid  one;^  but,  excepting  in 
the  instance  of  a  clear  case  of  fraud  being  established,  the  only  course 
which  a  tenant  can  pursue,  who  wishes  to  dispute  the  title  of  the 
landlord  under  whom  he  entered,  is  to  yield  up  the  premises,  and 
then  bring  an  action  to  recover  them.^  So  strict  is  this  rule,  that, 
even  should  a  landlord,  while  proving  his  own  case,  in  an  action 
against  the  tenant  for  use  and  occupation,  disclose  the  fact  that  ho 
himself  had  only  an  equitable  or  a  joint  estate  in  the  premises,  the 
tenant  cannot  avail  himself  of  that  circumstance  as  a  defence  to  the 
action.*  Neither  can  a  lessee,  who  has  once  accepted  a  lease  and 
paid  rent  under  it,  dispute  the  lessor's  title,  though  the  deed  itself 
admits  upon  its  face  some  infirmity  in  that  title.*  And  where  a 
tenant  has  held  premises  under  a  corporation  aggregate,  and  paid 
rent,  he  cannot  object  to  their  suing  him  for  use  and  occupation,  on 
the  ground  that  a  corporation  cannot  demise  except  by  deed,  and 


'  Doe  V.  Wiggins,  4  Q.  B.  367. 

^  Doe  V.  Pegge,  1  T.  R.  760,  n.,  per  Ld.  Mansfield;  Doe  v.  Barton,  11  A. 
&  E.  307,  312;  3  P.  &  D.  194,  S.  C.  See  Att.-Gen.  v.  Stephens,  1  Kay  &  J. 
744—747,  per  Wood,  V.-C;  6  De  Gex,  M.  &  G.  Ill,  S.  C. 

=*  Doe  V.  Pegge,  1  T.  R.  760,  n.,  per  Ld.  Mansfield. 

*  Cooke  V.  Loxley,  5  T.  R.  4.  ^  Doe  v.  Wiggins,  4  Q.  B.  367. 

®  Per  Ld.  Denman,  in  Id.  375. 

^  Per  Coleridge,  J.,  in  Id.  .377;  Doe  v.  Lady  Smythe,  4  M.  &  Sel.  348.  See 
Rules  of  Sup.  Ct.  1883,  Ord.  XVIIL,  R.  2;  App.  C.  sect.  VII. 

8  Dolby  t)..Iles,  11  A.  &  E.  335. 

^  Duke  V.  Ashby,  7  H.  &  N.  600;  Morton  v.  Woods,  3  Law  Rep.  Q.  B. 
658;  37  L.  J.,  Q.  B.  242,  S.  C. ;  4  Law  Rep.,  Q.  B.  293,  S.  C,  in  Ex.  Ch.;'&  9 
B.  &  S.  632. 

(2989) 


124  ESTOPPEL  IN  PAIS — LANDLORD  AND  TENANT.  [PABT  I. 

that  he  has  occupied  without  deed.'  This  rule,  too,  is  applicable 
in  an  action  of  trespass,  as  well  as  in  an  action  to  recover  land;'  and 
it  is  binding,  not  only  on  the  tenant  himself,  but  on  all  who  claim  in 
any  way  through  him.^  Thus,  where  a  lessee  gave  up  possession  of 
the  premises  1o  a  party  claiming  them  by  a  title  adverse  to  that  of 
the  lessor,  and  prior  to  the  lease,  that  party  was  held  to  be  estopped, 
as  the  lessee  would  have  been,  from  disputing  the  landlord's,  title.* 
The  principle  of  this  rule  extends  also  to  the  case  of  a  person 
coming  in  by  permission  as  a  mere  lodger,  a  servant,  or  other 
licensee.^ 


§  102.  But  though  a  tenant  cannot  deny  that  the  person  by 
whom  he  was  let  into  possession  had  title  at  the  commencement 
of  the  tenancy,  he  may  show  that  he  had  no  title  at  a  previous 
time.  Thus,  where  in  ejectment  the  defendant  claimed  under  a 
conveyance  from  a  certain  company,  bearing  date  1824,  he  was 
allowed  to  dispute  the  title  of  the  company  to  convey  the  same 
premises  to  the  lessor  of  the  plaintiff  in  ISIS.*^  So,  where  a  lessee 
had  been  let  into  possession  in  1S26  under  a  demise  from  a  tenant 
for  life,  and  after  the  death  of  the  tenant  for  life  an  ejectment  was 
brought  against  him  by  the  reversioner,  on  the  ground  that  the 
lease  was  void,  the  court,  while  they  admitted  that  the  interests 
of  the  tenant  for  life  and  of  the  reversioner  were  so  far  identical, 
as  to  preclude  the  lessee  from  showing  adverse  title  in  another  at 

>  May.  of  Stafford  r.  Till,  4  Bing.  75;  12  Moore,  260,  S.  C;  Dean  and  Ch. 
of  Rochester  i:  Pierce,  1  Camp.  466;  recognised  in  Fishmongers'  Co.  r. 
Robertson,  5  M.  &  Gr.  194.  See  Eccles.  Commis.  v.  Merral,  4  Law  Rep.,  Ex. 
162;  38  L.  J.,  Ex.  93,  S.  C;  also  post,  §  984. 

2  Delaney  r.  Fox,  26  L.  J.,  C.  P.  248;  2  Com.  B.,  N.  S.  769,  S.  C. ;  qualify- 
ing a  dictum  of  Pollock,  C.  B.,  in  "SVatson  r.  Lane,  25  L.  J.,  Ex.  102.  See, 
also,  Ward  v.  Ryan,  I.  R.  10  C.  L.  17.  per  Ex.  C. 

*  Lond.  &  N.-West.  Ry.  Co.  r.  West,  2  Law.  Rep.,  C.  P.  553;  36  L.  J..  C. 
P.  245,  S.  C. 

*  Doe  r.  Mills,  2  A.  &  E.  17;  Doe  v.  Lady  Smythe,  4  M.  &  S.  347;  Taylor  r. 
Keedham,  2  Taunt.  278. 

*  Doe  r.  Baytup,  3  A.  &  E.  188.  In  this  case  a  woman  asked  leave  to  get 
vegetables  in  the  garden,  and  having  obtained  the  keys  for  this  purpose, 
fraudulently  took  possession  of  the  house  and  set  up  a  title.  The  court  held 
that  she  could  not  defend  an  ejectment,  but  must  deliver  up  the  premises 
before  she  contested  the  title.     See,  also,  Doe  v.  Birchmore,  9.  A.  &  E.  662. 

6  Doe  V.  Powell,  1  A.  &  E.  531. 

(2990) 


CHAP,  v.]        ESTOPPEL  IN  PAIS — LANDLORD  AND  TENANT.  125 

the  date  of  the  lease,  allowed  him  to  prove  that,  before  the  year 
1826,  the  legal  estate  was  outstanding  in  a  third  party,  and  that, 
consequently,  the  reversioner,  who  claimed  in  common  with  the 
tenant  for  life  under  a  settlement  of  a  much  earlier  date,  had  no 
legal  title  to  the  premises.'  Again,  a  tenant  may  prove  that,  since 
the  commencement  of  the  tenancy,  the  title  of  his  lessor  has  expired 
or  been  defeated."  Thus,  he  may  prove  that  his  landlord  was  a 
tenant  pour  autre  vie,  and  that  the  cestui  que  vie  is  dead;  or  that 
he  was  a  tenant  from  year  to  year,  and  that  the  superior  landlord 
had  given  him  a  notice  to  quit,  or  that  he  was  a  mere  tenant  at  will, 
and  that  the  will  had  been  determined.^  So,  also,  the  tenant  may 
show,  that  the  person  who  let  him  in  was  a  mortgagor  in  possession, 
who,  not  being  treated  as  a  trespasser,  had  title  to  confer  on  him 
the  legal  possession ;  and  he  may  then  further  prove  that  this  party 
has  subsequently  been  treated  as  a  trespasser,  whereby  both  the 
mortgagor's  title,  as  well  as  his  own  rightful  possession  under  him, 
have  been  determined.*  In  short,  he  may  rely  on  any  fact,  which 
either  amounts  to  an  eviction  by  title  paramount,^  or  shows  that 
the  title  of  his  landlord  has  expired.** 


'  Doe  r.  Langdon,  12  Q.  B.  712;  Doe  v.  ^Tiitroe,  D.  &  R.,  N.  P.  C.  1. 

''Doe  1!.  Barton,  11  A.  &  E.  312,  per  Ld.  Denman;  Hopcraft  t;.  Keys,  9 
Bing.  613.  See  Bayley  r.  Bradley,  5  Com.  B.  396;  Watson  v.  Lane,  11  Ex. 
R.  769;  Langford  v.  Selmes,  3  Kay  &  J.  220;  Howe  i-.  Scarrott,  4  H.  &  N. 
723;  Lond.  &  X.-West.  Ry.  Co.  v.  West,  36  L.  J.,  C.  P.  245;  2  Law  Rep., 
C.  P.  553,  S.  C. 

3  Doe  r.  Barton,  11  A.  &  E.  314. 

*  Id.  p.  315.  It  is  now  determined  that  a  mortgagee,  by  simply  giving 
notice  to  the  tenant  to  pay  rent  to  him,  does  not  treat  the  mortgagor  as  a 
trespasser;  Hickman  r.  Machin,  4  H.  &  N.  716;  but  a  notice,  to  have  such 
an  effect,  must  either  be  coupled  with  an  attornment,  or  be  followed  by 
actual  payment  of  rent,  to  the  mortgagee.  See  id.;  also  Wilton  v.  Dunn, 
17  Q.  B.  294;  Turner  r.  Cameron's  Coalbrook  St.  Coal  Co.,  5  Ex.  R.  932; 
Litchfield  v.  Ready,  id.  939;  Trent  v.  Hunt,  9  Ex.  R.  22,  23. 

*  Gouldsworth  v.  Knights,  11  M.  &  W.  344. 

*  Downs  V.  Cooper,  2  Q.  B.  256.  In  that  case,  A.  demised  premises  to  B. , 
and  during  the  term  C.  claimed  the  property.  The  matter  was  referred,  and 
the  arbitrator  awarded  in  C.  's  favour.  A.  thereupon  delivered  up  the  title 
deeds  to  C,  and  permitted  him  to  tell  B.  to  pay  the  rent  in  future  to  him,  C. 
This  B.  did,  but  A.  afterwards  distrained  for  the  same  rent.  On  replevin, 
avowry,  and  plea  in  bar  stating  the  above  facts,  held  that  A. 's  title  had 
expired;  that  his  conduct  was  an  admission  of  that  fact,  and  that  B.  was  not 
estopped  from  alleging  it;  and  per  Ld.  Denman,  that  A.,  having  induced  B. 
to  pay  rent  to   C,  was   estopped   from   setting   up   his  relation  of  landlord 

(2991) 


126  WHAT  CONSTITUTES  A  LETTING  INTO  POSSESSION.      [PART  I. 

§  103.  As  to  what  constitutes  a  letting  into  possession,  some  ^  90 
doubts  exists.  In  one  case,  where  a  party  was  in  possession  of 
premises  without  leave  obtained  from  any  one,  and  a  person  came 
to  him  and  said,  "You  have  no  right  to  the  premises,"  upon 
which  he  acquiesced,  and  took  a  lease  from  this  person,  the  court 
held  that  the  relation  of  landlord  and  tenant  was  sufficiently  created 
to  debar  the  one  from  disputing  the  title  of  the  other.'  But  in  a 
subsequent  case,  where  a  tenant,  being  already  in  possession  of 
premises  under  a  demise  from  a  termor,  had  at  the  expiration  of 
the  termor's  right,  when  his  own  title  also  expired,  entered  into  a 
parol  agreement  with  another  party  to  hold  the  premises  under  him; 
but  it  appeared  that  he  had  done  so  in  ignorance  of  the  real  facts  of 
the  case,  and  under  the  supposition  that  this  party  was  entitled  to 
the  premises;  it  was  held  that  the  agreement  was  not  equivalent  to 
the  first  letting  into  possession."  This  question  may,  in  certain 
cases,  become  highly  important,  because  neither  a  parol  agreement 
by  a  tenant  to  hold  premises  of  a  party,  by  whom  he  was  not  let 
into  possession,^  nor  an  attornment,*  nor  an  actual  payment  of  rent 
to  such  party,  even  under  a  distress,^  will  in  themselves  operate  as 
estoppels;  but  the  tenant  may  still  show  that  he  has  acted  in  ignor- 
ance, or  under  a  misapprehension  of  the  real  circumstances,®  or,  in 

against  B.  See  Doe  v.  Watson,  2  Stark.  R.  230;  Doe  i'.  Seaton,  2  C.  M.  & 
R.  728;  Claridge  v.  Mackenzie,  4  M.  &  Gr.  152;  Mountnoy  v.  Collier,  22 
L.  J.,  Q.  B.  124;  1  E.  &  B.  630,  S.  C. ;  Emery  v.  Burnett,  27  L.  J.,  C.  P.  216; 
Delmege  v.  Mullins,  I.  R.  9  C.  L.  209,  per  Ex.  Ch. 

1  Doe  V.  Mills,  2  A.  &  E.  20,  per  Patteson,  J.  See  also  Dolby  v.  lies,  11 
A.  &  E.  335. 

''  Claridge  v.  Mackenzie,  4  M.  &  Gr.  143;  4  Scott,  N.  R.  726,  S.  C.  "The 
witness  speaks  of  a  new  agreement  having  been  entered  into  between  the 
plaintiff  and  the  defendant,  that  the  former  should  continue  in  possession  as 
tenant  to  the  latter;  but  there  was  no  neir  possession  given  by  the  defendant; 
she  was  in  no  way  prejudiced;  she  could  not  have  turned  the  plaintiff  out 
of  possession;  and  before  their  agreement,  if  she  had  brought  her  ejectment, 
the  plaintiff  might  have  shown  that  she  had  no  title,  and  that  the  title  was  in 
some  one  else.  It  is  not  like  the  ease  of  a  person  letting  another  into  posses- 
sion of  vacant  premises;  it  is  in  fact  a  remaining  in  possession  of  premises, 
which  had  been  formerly  occupied  by  the  tenant."  Per  Tindal,  C.  J.,  4  M. 
&  Gr.  1.52.  '^  Id.  *  Doe  v.  Brown,  7  A.  &  E.  447. 

^  Knight  V.  Cox,  18  Com.  B.  645,  S.  C,  nom.  Cox  v.  Knight,  25  L.  J., 
C.  P.  314. 

^Gregory  v.  Doidge,  3  Bing.  474;  11  Moore,  394,  S.  C. ;  Gravenor  v.  Wood- 
house,  1  Bing.  38;  7  Moore,  289,   S.  C. ;  Rogers  v.  Pitcher,  6  Taunt.  202;  1 

(2992) 


CHAP,  v.]       CONCLUSIVE  PRESUMPTIONS — INFANTS.  127 

the  case  of  payment  of  rent,  that  some  other  party  was  entitled  to 
receive  it.^ 

§  104.^  Conclusive  presumptions  of  law  are  also  made  with  re-  §  91 
spect  to  infants.^  Thus,  an  infant  under  the  age  of  seven  years  is 
conclusively  presumed  to  be  incapable  of  committing  any  felony, 
or,  indeed,  any  indictable  offence,*  for  want  of  discretion  ;  ^  and 
under  fourteen  a  male  infant  is  presumed  incapable,  on  the  ground 
of  impotency,  of  committing  a  rape  as  a  principal  in  the  first  degree,*' 
or  even  of  committing  an  assault  with  intent  to  perpetrate  that 
crime.'  So,  a  female  under  the  age  of  twelve  years  is  presumed 
incapable  of  consenting  to  sexual  intercourse,^  and  under  the  age  of 
thirteen  her  consent  to  any  act  of  indecency  cannot  be  set  up  as  a 
defence  to  a  charge  of  assault."     An  infant  under  the  age  of  twenty- 

Marsh.  541,  S.  C.  ;  Doe  v.  Barton,  11  A.  &  E.  313  ;  3  F.  &  1).  194,  S.  C.  ;  Hall 
V.  Butler,  10  A.  &  E.  20G,  per  Patteson,  J. 

1  Cooper  V.  Blandj^,  1  Bing.,  N.  C.  49,  50  ;  Doe  v.  Francis,  2  M.  &  Rob.  57  ; 
in  which  case  payment  of  rent  being  the  only  evidence  of  tenancy,  Patteson, 
J.,  allowed  the  defendant  to  show,  that  the  lessor  of  the  plaintiff  had  acted 
as  the  agent  of  third  parties.  See  Hitchings  v.  Thompson,  5  Ex.  R.  50,  ex- 
plained by  lA.  Cran worth,  C,  in  Att.-Gen.  v.  Stephens,  6  De  Gex,  M.  & 
G.  141.  '^  Gr.  Ev.  §  28,  in  part. 

^  In  all  civil  questions  where  the  rights  of  parents  depend  on  the  birth  of 
a  living  child,  the  Scotch  law  conclusively  presumes  that  the  child  was  not 
born  alive,  if  it  was  not  heard  to  cry.     1  Dickson,  Ev.  180. 

*  42  &  43  v.,  c.  49,  §  10,  .subs.  5, 

*  4  Bl.  Com.  23  ;  1  Hale,  27.  If  an  infant  under  seven  is  given  into 
custody  on  a  charge  of  felony,  an  action  for  false  imprisonment  will  lie  ; 
Marsh  v.  Lowder,  2  New  R.  280,  per  C.  P.  ;  S.  C,  nom.  Marsh  v.  Loader, 
14  Com.. B.,  N.  S.  535. 

6  1  Hale,  630  ;  1  Russ.  C.  &  M.  676.  This  presumption  is  not  affected  by 
24  &  25  v.,  c.  100,  §  4y  ;  R-  v-  Groombridge,  7  C.  &  P.  582,  per  Gaselee,  J., 
and  Ld.  Abinger  ;  and  it  applies  to  the  ofTence  of  carnally  abusing  a  girl 
under  twelve  years  of  age  ;  R.  v.  Jordan,  9  C.  &  P.  118,  per  Williams,  J. 
But  if  the  boy  have  a  mischievous  discretion,  he  maybe  a  principal  in  the 
second  degree,  1  Hale,  630.  The  patient  may  be  convicted  of  an  unnatural 
crime,  though  the  agent  be  under  fourteen ;  R.  v.  Allen,  1  Den.  364  ;  2  C. 
&  Kir.  169,  S.  C. 

^  R.  V.  Eldershaw,  3  C.  &  P.  396,  per  Vaughan,  B.  ;  R.  v.  Philips,  8  C.  &  P. 
736,  per  Patteson,  J. 

8  38  &  39  v.,  c.  94,  ?  3;  24  &  25  V.,  c.  100,  §  52.  See  R.  v.  Beale,  10 
Cox,  157;  1  Law  Rep.,  C.  C.  10,  S.  C.  Between  the  ages  of  twelve  and 
thirteen  the  consent  of  the  girl  only  reduces  the  man's  crime  from  felony  to 
misdemeanor,  38  &  39  V.,  c.  94,  ?  4. 

9  43  &  44  v.,  c.  45,  g  2;  R.  v.  Roadley,  14   Cox,  463  ;  49  L.  J.,  M.   C.  88, 

(2993) 


128  PRESUMPTION — INFANTS.  [PART  I. 

one  years  is  presumed  to  be  so  far  incapable  of  managing  his  own 
affairs,  that  he  cannot,  in  general,'  alien  his  land,  or  execute  a 
deed,^  or  state  an  account,  or  bind  himself  by  any  contract,*  unless 
it  be  for  necessaries  ;  *  or  be  subjected  to  a  receiving  order  being 
made  against  him  under  the  Bankruptcy  laws  ; ''  neither  since  the 
first  of  January,  1838,  has  he  had  any  power  to  make  a  will,  whether 
it  purports  to  dispose  of  real  or  of  personal  estate  ; "  though,  before 
that  date,  boys  of  fourteen  years,  and  gii-ls  of  twelve,  might  have 
disposed  of  personalty  by  will,  provided  they  were  proved  to  have 
been  of  sufficient  discretion.' 

S.  C.  If  this  case  ever  was  sound  law,  it  is  no  longer  so,  in  consequence  of 
the  above  enactment. 

1  See  18  &  19  v.,  c.  43,  and  23  «&  24  V.,  c.  83,  Ir.,  which  Acts  enable  male 
infants,  who  are  at  least  twenty  years  old,  and  female  infants,  who  are  at  least 
seventeen  years  old,  to  make,  with  the  approbation  of  the  Chancery  Division, 
binding  settlements  of  their  real  and  personal  estate  on  marriage.  Infimts 
may  also  be  members  of  friendly  societies,  38  &  39  V.,  c.  60,  ?  15,  subs.  8. 

2  See  Martin  v.  Gale,  L.  R.  4  Ch.  D.  428,  where  held  by  Jessel,  M.  R.,  that 
a  deed  by  an  infant  charging  his  reversionary  interest  to  secure  the  repay- 
ment of  money  advanced  to  him  for  necessaries,  was  voidal)le  and  could  not  be 
enforced. 

3  The  Act  of  37  &  38  V.,  c.  G2,  which  was  passed  on  7th  August,  1874, 
enacts,  in  §  1,  that  "  all  contracts,  whether  by  specialty  or  by  simple  contract, 
henceforth  entered  into  by  infants  for  the  repayment  of  money  lent  or  to  be 
lent,  or  for  goods  supplied  or  to  be  supplied,  other  than  contracts  for  neces- 
saries, and  all  accounts  stated  with  infants,  shall  be  absolutely  void  ;  Pro- 
vided that  this  enactment  shall  not  invalidate  any  contract  into  which  an 
infant  may,  by  any  existing  or  future  statute,  or  by  the  rules  of  common  law 
or  equity,  enter,  except  such  as  now  by  law  are  voidable."  As  to  how  far  an 
infant  can  act  as  a  trustee,  or  exercise  a  power,  see  King  v.  Bellord,  1  Hem. 
&  M.  343,  and  authorities  there  cited  ;  also  In  re  Arnit's  Trusts,  I.  R.,  5  Eq. 
352  ;  In  re  D'Angibau,  49  L.  J.,  Ch.  182,  per  Jessel,  M.  R.  ;  S.  C.  on  App., 
49  L.  J.,  Ch.  756  ;  and  L.  R.,  15  Ch.  D.  228. 

*  1  Bl.  Com.  465,  466  ;  Co.  Lit.  78  6.  As  to  what  are  necessaries,  see  ante, 
§  42.  As  to  how  far  infant  shareholders  are  liable  to  actions  for  calls,  see 
Newry  &  Ennisk.  Ry.  Co.  v.  Combe,  5  Rail.  Cas.  633  ;  3  Ex.  R.  565,  S.  C.  ; 
Leeds  &  Thirsk  Ry.  Co.  v.  Fearnley.  5  Rail.  Cas.  644  ;  4  Ex.  R.  26,  S.  C.  ; 
Cork  &  Bandon  Ry.  Co.  v.  Cazenove,  10  Q.  B.  935  ;  N.  West.  Ry.  Co.  v. 
McMichael,  5  Ex.  R.  114  ;  Birkenhead,  Lane.  &  Chesh.  June.  Ry.  Co.  v. 
Pilcher,  id.  121.  An  infant  lessee,  though  not  liable  on  the  contract  of 
tenancy,  is  answerable  for  the  rent  during  his  occupation  of  the  premises, 
Blake  v.  Concannon,  I.  R.,  4  C.  L.  323.  But  see  Lempriere  v.  Lange,  L.  R., 
12  Ch.  D.  675,  per  Jessel,  M.  R. 

*  Re  Jones,  ex  p.  Jones,  50  L.  J.,  Ch.  673.  per  Ct.  of  App.  ;  L.  R.  18  Ch.  D. 
109,  S.  C. 

6  7  W.  4  &  1  v.,  c.  26,  U  7,  34.  '  1  Will,  on  Ex.  14—16. 

(2994) 


CHAP,  v.]  CHILD-BEARING   AGE — LEGITIMACY.  129 

§  105.  With  respect  to  the  period  of  life,  at  which  the  possibility  §  91a 
of  having  issue,  without  miracvilous  agency,*  becomes  in  women 
extinct,  no  rigid  presumption  has  been  fixed  by  the  law;  but  courts 
of  equity,  in  directing  the  distribution  of  trust  funds,  have  been  in 
the  habit  of  assuming  that  females,  after  arriving  at  the  age  of 
fifty  three,  are  in  general  past  child-bearing.* 


§  106.  Again,  the  law  in  certain  cases  recognises  a  conclusive  g  92 
presumption  in  favour  of  legitimacy.^  Thus,  where  the  husband 
and  wife  have  cohabited  together,  and  no  impotency  is  proved,  the 
issue  is  conclusively  presumed  to  be  legitimate,  though  the  wife 
is  shown  to  have  been,  at  the  same  time,  guilty  of  infidelity;*  and 
even  where  the  parents  are  living  separate,  a  strong  presumption 
of  legitimacy  still  arises,  which  can  only  be  rebutted,  either  by 
proving  a  divorce  a  mensa  et  thoro,  or,  since  the  11th  of  January, 
1858,  a  judicial  separation,  or  by  cogent  and  almost  irresistible 
proof  of  non-access  in  a  sexual  sense.^  The  fact  that  a  woman  is 
living  in  notorious  adultery,  though  of  course  it  amounts  to  very 
strong  evidence,  is  not,  in  itself,  quite  sufiicient  to  repel  this  pre- 
sumption.^    But   where  the  parents  have  been   either  divorced  a 

*  See  Gen.,  ch.  xvii.,  vv.  15 — 19;  ch.  xviii.,  vv.  9 — 15,  aud  ch.  xxi.,  vv. 
1—7. 

^  Haynes  V.  Haynes,  35  L.  .7.,  Ch.  303,  per  Kindersley,  V.-C,  and  cases, 
there  cited  in  the  note.  See,  also,  re  Widdow's  Trusts,  11  Law  Rep.,  Eq. 
408,  per  Malins,  V.-C;  40  L.  J.,  Ch.  380,  S.  C;  and  re  Millner's  Estate,  14 
Law  Rep.,  Eq.  245;  42  L.  J.,  Ch.  44,  S.  C.  In  this  last  case  a  woman  was 
presumed  to  be  barren  at  the  age  of  forty-nine  years  and  nine  months,  as  she 
had  been  married  for  twenty-si.x  years,  and  had  never  had  a  child.  But  in 
Croxton  v.  May,  L.  R.,  9  Ch.  D.  388,  the  Court  of  Appeal  refused  to  regard  a 
woman  as  past  child-bearing,  though  her  age  was  fifty-four  and  a  half  years, 
and  she  had  had  no  child,  having  been  married  three  years.  Sed  qu.,  and  see' 
Davidson  v.  Kimpton,  L.  R.,  18  Ch.  D.  213.  ^  See  ante,  I  16. 

*  Cope  V.  Cope,  1  M.  &  Rob.  269,  276;  5  C.  &  P.  604,  S.  C;  Morris  v. 
Davies,  3  C.  &  P.  215,  427;  5  CI.  &  Fin.  163,  S.  C;  Wright  v.  Holdgate,  3 
C.  &  Kir.  158;  Legge  v.  Edmonds,  25  L.  J.,  Ch.  125;  Banbury  Peer.,  in 
Appendix,  n.  E.  to  Le  Marchant's  Gardner's  Peer.,  Selw.  N.  P.  748 — 750;  and 

I  Sim.  &St.  153,  S.  C;  R.   v.  Luffe,    8   Ea.st,    193.     As   to   the   Mahomedan, 
Law  on  this  subject,  see  Ashrufood  Dowlah  Ahmed  v.  Hyder  Hossein  Khan, 

II  Moo.  Ind.  App.  C.  94. 

*  Id.;  Saye  and  Sele  Peer.,  1  H.  of  L.  Cas,  507;  Hargrave  v  Hargrave,  9 
Beav.  552;  Plowes  v.  Bossey,  2  Drew.  &  Sm.  145;  31  L.  J.,  Ch.  681,  S.  C. 
per  Kindersley,  V.-C;  Atchley  v.  Sprigg,  33  L.  J.,  Cb.  345,  per  id. 

«  R.  V.  Mansfield,  1  Q.  B.  444,  450,   451 ;  1  G.  &  D.  7,   S.    C     In  this   case 
9  LAW  OF  EVID. — V.  1.  (2995) 


130  SPOLIATION  OF  PAPERS — RUNNING  BLOCKADE.  [pART  I. 

mensu  et  thoro,  or  judicially  separated,  their  children  born  during 
the  separation  are  prima  facie  illegitimate.' 

§  107.^  Conclusive  presumptions  are  not  unknown  to  the  Imv  of  ^  93 
nations.  Thus,  if  a  neutral  vessel  be  found  carrying  despatches  of 
the  enemy  between  different  parts  of  the  enemy's  dominions,  their 
effect  is  presumed  to  be  hostile,^  at  least  if  they  have  been  fraudu- 
lently concealed.  The  spoliation  of  papers  by  the  captured  party 
has  been  regarded,  in  all  the  States  of  Continental  Europe,  as 
conclusive  proof  of  guilt;  but  in  England  and  America  such  an 
act  is  open  to  explanation,  unless  the  cause  otherwise  labours 
under  grave  suspicion,  or  the  surrounding  circumstances  establish 
a  case  of  bad  faith  or  of  gross  prevarication.*  Still,  though  our 
law,  in  its  lenity,  does  not  found  on  the  mere  spoliation  of  papers 
an  absolute  presumption  of  guilt,  it  only  stops  short  of  that  result; 
for  a  case  that  escapes  with  such  a  brand  upon  it,  is  saved,  as  it 
were,  from  the  fire.^  Again,  the  maritime  law  recognizes  a  pre- 
sumption all  but  conclusive  against  any  vessel,  which  has  been 
captured  while  entering  a  blockaded  port;  and  the  only  mode  by 
which  the  owner  can  protect  the  ship  from  being  condemned  as 
lawful  prize,  is  by  establishing  a  justification  on  the  ground  of 
imperative  necessity.*^  When  a  ship,  too,  is  condemned  for  breach 
of  blockade,  the  cargo  almost  inevitably  follows  the  same  fate;  for 
the  law  conclusively  presumes  that  the  owners  of  the  cargo  were 
privy  to  the  intention  of  violating  the  blockade,  unless  they  can 
prove  that,  at  the  time  when  the  shipment  was  made,  they  could 
not  have  known  that  the  blockade  had  been  imposed,' 

§  108.^     In  these  cases  of  conclusive  presumption,  the  rule  of  law    ?  g^ 
merely    attaches  itself  to  the  circumstances  when  proved ;  it  is  not 


Ld.  Denman  questions  the  authority  of  Cope  v.  Cope,  as  reported  in  5  C.  & 
P.  604.  See  Hawes  v.  Draeger,  L.  E.,  23  Ch.  D.  173,  per  Kay,  J.;  52  L.  J., 
Ch.  449,  S.  C. 

1  St.  George  v.  St.  Margaret,  1  Salk.  123.  ^  Gr.  Ev.  §  31,  in  part. 

3  The  Atalanta,  6  Rob.  Adm.  440,  454. 

*  The  Pizarro,   2  Wheat.   227,  241,  242,   n.  e;  The  Hunter,  1  Dods.  Adm. 
180.     See  post,  §116. 

*  The  Hunter,  1  Dods.  Adm.  486,  487,  per  Sir  W.  Scott. 

6  Baltazzi  v.  Ryder,  12  Moo.  P.  C.  R.  168.  '  Id. 

^  Gr.  Ev.  §  32,  almost  verbatim. 

(2996) 


CHAP,  v.]  DISPUTABLE  PRESUMPTIONS.  131 

deduced  from  them.  It  is  not  a  rule  of  inference  from  testimony, 
but  a  rule  of  protection,  as  expedient,  and  for  the  general  good. 
It  does  not,  for  example,  assume  that  all  landlords  have  good 
titles  ;  but  that  it  will  be  a  public  inconvenience  to  suffer  tenants 
to  dispute  them.  Neither  does  it  assume  that  all  averments  and 
recitals  iu  deeds  and  records  are  true  ;  but  that  it  will  be  mischie- 
vous if  parties  are  permitted  to  deny  them.  It  does  not  assume 
that  all  simple  contract  debts,  of  six  years'  standing,  are  paid,  nor 
that  every  man  quietly  occupying  land  twenty  years  as  his  own, 
has  a  valid  title  by  grant ;  but  it  deems  it  expedient  that  claims 
opposed  by  such  evidence  as  the  lapse  of  those  periods  affords, 
should  not  be  countenanced  ;  and  it  considers  that  society  is  more 
benefited  by  a  refusal  to  entertain  such  claims,  than  by  suftering 
them  to  be  made  good  by  proof.  In  fine,  it  does  not  assume  the 
impossibility  of  things  which  are  possible ;  on  the  contrary,  it  is 
founded,  not  only  on  the  possibility  of  their  existence,  but  on  their 
occasional  occurrence ;  and  it  is  against  the  mischiefs  of  their 
occurrence  that  it  interposes  its  protecting  prohibition.' 


§  109.^  The  second  class  of  presumptions  of  law, — answering  to  §  95 
the  prcesumptiones  juris  of  the  Roman  law,  which  may  always  be 
overcome  by  opposing  proof,'' — consists  of  those  termed  difiputable 
presumptions.  These,  as  well  as  the  former,  are  the  result  of  the 
general  experience  of  a  connexion  between  certain  facts  or  things, 
the  one  being  usually  found  to  be  the  companion,  or  the  effect,  of 
the  other.  The  connexion,  however,  in  this  class  is  not  so  inti- 
mate, or  so  uniform,  as  to  be  conclusively  presumed  to  exist  in 
every  case  ;  yet  it  is  so  general,  that  the  law  itself,  without  the  aid 
of  a  jury,  infers  tbe  one  fact  from  the  proved  existence  of  the  other, 
in  the  absence  of  all  opposing  evidence.  In  this  mode  the  law, — 
even  in  the  absence  of  any  corresponding  allegation  in  the  plead- 
ing,*— defines  the  nature  and  amount  of  the  evidence  which  is  siaffi- 
cient  to  establish  a  prima  facie  case,  and  to  throw  the  burden  of 
proof  on  the  other  party  ;  and  if  no  opposing  evidence  is  off'ered, 


^  See  6  Law  Mag.  348,  355,  356.  ^  Gr.  Ev.  I  33,  in  great  part. 

3  Hein.  ad  Panel.  P.  iv.  ?  124. 

*  Rules  of  Sup.  Ct.,  1883,  Ord.  xix.,  r.  25,  cited  post,  I  368,  n. 

(2997) 


132  PRESITMPTIONS  OF  LAW  AND  OF  FACT.  [PABT  I. 

the  jury  are  bound  to  find  in  favour  of  the  presumption.  A  contrary 
verdict  might  be  set  aside  as  being  against  evidence. 


§  110.'  The  rules  in  this  class  of  presumptions,  as  in  the  g  96 
former,  have  been  adopted  by  common  consent,  from  motives  of 
public  policy,  and  for  the  promotion  of  the  general  good  ;  yet  not, 
as  in  the  former  class,  forbidding  all  further  evidence,  but  only  dis- 
pensing vpith  it  till  some  proof  is  given  on  the  other  side  to  rebut 
the  presumption  raised.  Thus,  as  men  do  not  generally  violate  the 
penal  code,  the  law  presumes  every  man  innocent;  but  some  men 
do  transgi-ess  it :  and  therefore  evidence  is  received  to  repel  this 
presumption. 

§  111.  Such  being  the  nature  of  disputable  presumption  of  law,  ^  97 
it  is  obvious  that,  theoretically,  they  differ  from  mere  presumptions 
of  fact  in  three  important  particulars.  In  the  first  place,  the  judge 
is  bound  to  explain  to  the  jury  whatever  legal  presumptions  arise 
from  the  facts  proved;^  next,  the  jury  are  bound  to  give  full  weight 
to  the  presumptions  so  explained ;  and  lastly,  the  court  alone, 
without  the  intervention  of  the  jury,  may  draw  the  proper  legal 
inferences,  whenever  the  requisite  facts  are  developed  in  the  plead- 
ings.^ In  practice,  however,  the  distinction  between  the  two  species 
of  presumptions  is  by  no  means  well  defined,  and  the  line  of  demar- 
cation, even  when  visible  at  all,  is  often  overlooked.*  A  presump- 
tion which  is  regarded  by  some  judges  as  one  of  law,  is  treated  by 
others  as  one  of  fact ;  nay,  the  same  judges  place  the  same  pre- 
sumption at  different  times  in  different  classes,  as  if  for  the  purpose 
of  illustrating  "the  blessings,"  which  one  of  their  body  has  declared 
that  "we  enjoy,  in  rules  capable  of  flexible  interpretation."^  The 
following  remarks,  which  principally  apply  to  disputable  presump- 
tions of  law,  will  be  found  occasionally  to  extend,  from  motives  of 
convenience,  to  cogent  presumptions  of  fact. 

§  112.  One  of  the  most  important  legal  presumptions  is  that  of    ?  97a 

^  Gr.  Ev.  ^  34,  almost  verbatim. 

^  Ante,  ?  25.  '  Best,  Ev.  404,  405.  *  Best,  Ev.  424. 

*  Per  Talfourd,  J.     See  Letters  of  the  Judges   to  the   Chancellor  on   the 
Crim.  Law  Bills  of  1853,  p.  37. 

(2998) 


CHAP,  v.]  PRESUMPTION  OF  INNOCENCE.  133 

innocence.  This  presumption,  which,  in  legal  phraseology,  "  gives 
the  benefit  of  a  doubt  to  the  accused,"  is  so  cogent,  that  it  cannot 
be  repelled  by  any  evidence  short  of  what  is  sufficient  to  establish 
the  fact  of  criminality  with  moral  certainty.'  In  mere  civil  dis- 
putes, when  no  violation  of  the  law  is  in  question,  and  no  legal 
presumption  operates  in  favour  of  either  party,  the  preponderance 
of  probability,  due  regard  being  had  to  the  burthen  of  proof,  may 
constitute  sufficient  ground  for  a  verdict ;  ^  but  to  affix  on  any 
person  the  stigma  of  crime  requires  a  higher  degree  of  assurance  ; 
and  juries  will  not  be  justified  in  taking  such  a  step,  except  on 
evidence  which  excludes  from  their  minds  all  reasonable  doubt.* 
It  has  sometimes  been  asserted  with  more  or  less  precision,  that 
the  presumption  in  question  is  confined  to  the  criminal  courts, 
being  there  specially  adopted  in  favour  of  life  and  liberty,  and 
as  a  safeguard  against  error  in  convictions  which  are  not  open 
to  revision.*  But  this  would  seem  to  be  a  mistake.  The  argu- 
ments just  cited  are  admirable  reasons  for  urging  juries  to  exercise 
more  than  ordinary  caution  in  the  investigation  of  grave  offences, 
but  the  presumption  itself  appears  to  rest  on  a  broader  basis.  The 
right  which  every  man  has  to  his  character,  the  value  of  that  cha- 
racter to  himself  and  his  family,  and  the  evil  consequences  that 
would  result  to  society  if  charges  of  guilt  were  lightly  entertained, 
or  readily  established  in  courts  of  justice: — these  are  the  real  con- 
siderations which  have  led  to  the  adoption  of  the  rule  that  all 
imputations  of  crime  must  be  strictly  proved.  The  rule,  then,  is 
recognised  alike  by  all  tribunals,  whether  civil  or  criminal,  and  is 
equally  effective  in  all  proceedings,  whether  the  question  of  guilt 
be  directly  or  incidentally  raised.^  For  example,  if  an  action  be 
brought  against  an  insurance  company  to  recover  a  loss  by  fire, 
and  the  defendants  plead  that  the  plaintiff  wilfully  burnt  down  the 


^  St.  Ev.  817,  865,  4th  ed.  ;  1  Gr.  Ev.  ?  13  a ;  E.  v.  White,  4  Fost.  &  Fin. 
383,  per  Martin,  B. 

2  St.  Ev.  818,  4th  ed.  ;  1  Gr.  Ev.  ?  13  a  ;  Best,  Ev.  120  ;  Cooper  v.  Slade, 
6  H.  of  L.  Cas.  772,  per  Willes,  J. 

5  St.  Ev.  817,  865,  4th  ed. ;  Best,  Ev.  120. 

*  Magee  v.  Mark,  11  Ir.  Law  R.,  N.  S.  449,  463,  per  Pigot,  C.  B.  ;  Best,  Ev. 
120  ;  1  Gr.  Ev.  ?  13  a. 

6  Best,  Ev.  447. 

(2999) 


134  PRESUMPTION  OF  INNOCENCE.  [PABT  I. 

premises,  the  jury,  before  they  find  a  verdict  against  the  plaintiff 
must  be  satisfied  that  the  crime  imputed  to  him  was  proved  by  as 
clear  evidence  as  would  justify  a  conviction  for  arson.'  So,  the 
offence  of  forgery  or  bigamy  must  be  established  by  the  same  strict 
evidence,  whether  the  question  arises  in  a  penal  court  on  a  prosecu- 
tion for  any  such  crime,  or  in  a  civil  court  on  a  plea  of  justification 
to  a  libel.  "^ 


§  113.^  So  strong  is  the  presumption  of  innocence,  that  even  g  93 
where  guilt  can  be  established  only  by  proving  a  negative,  that 
negative  must,  in  most  cases  to  which  no  special  statute  is  appli- 
cable,* be  proved,  though  the  general  rule  of  law  devolves  the 
burthen  of  proof  on  the  party  holding  the  affirmative.  Thus,  where 
the  plaintiff  complained  that  the  defendant,  who  had  chartered 
his  ship,  had  put  on  board  an  article  highly  inflammable  and 
dangerous,  ivithout  giving  notice  of  its  nature  to  the  master  in 
charge,  whereby  the  vessel  was  burnt,  he  was  held  bound  to  prove 
this  negative  averment.^ 

§  114.®  Questions  of  nicety  occasionallly  arise  where  the  pre-  ?  99 
sumption  of  innocence  is  met  by  some  counter  presumption.^ 
Thus,  where  a  woman,  twelve  months  after  her  husband  (a  soldier 
on  foreign  service)  was  last  heard  of,  married  a  second  husband,  by 
whom  she  had  children,  it  was  held  that  the  Court  of  Quarter  Ses- 
sions, upon  a  question  respecting  the  settlement  of  these  children, 


1  Thurtell  v.  Beaumont,  1  Bing.  339  ;  8  Moore,  612,  S.  C. 

^  Chalmers  v.  Shackell,  6  C.  &  P.  475,  per  Tindal,  C.  J.  ;  Willmett  v. 
Harmer,  8  C.  &  P.  695,  per  Ld.  Denman.  See,  also,  Neeley  v.  Lock,  8  C.  & 
P.  532,  per  Tindal,  C.J.  ;  Magee  v.  Mark,  11  Ir.  Law  R.,  N.  S.  449,  per  Fitz- 
gerald, B. 

3  Gr.  Ev.  ?  35,  in  part.  *  See  post,  ?  372. 

5  Williams  r.  E.  Ind.  Co.,  3  East,  193;  B.  N.  P.  298.  So  of  allegations 
that  a  party  had  not  taken  the  Sacrament,  R.  v.  Hawkins,  10  East,  211  ;  aflfd. 
in  Dom.  Proc.  2  Dow,  124  ;  or  had  not  complied  with  the  Act  of  uniformity, 
&c.,  Powell  V.  Milburn,  3  "SVils.  355,  3G6  ;  or  that  goods  were  not  legally 
imported,  Sissons  v.  Dixon,  5  B.  &  C.  758  ;  or  that  a  theatre  was  not  duly 
licensed,  Rodwell  v.  Redge,  1  C.  &  P.  220.     See  post,  §  371. 

«  Gr.  Ev.  I  35,  in  part. 

^  See  Middleton  v.  Barned,  4  Ex.  R.  241  ;  R.  v.  Bjomsen,  1  L.  &  Cave,  545 ; 
10  Cox,  74  ;  34  L.  J.,  M.  C.  180,  S.  C. 

(3000) 


CHAP,  v.]  PRESUMPTION  OF  GUILT.  135 

was  justified  in  presuming  that  the  first  husband  was  dead  at  the 
time  of  the  second  marriage,  though,  had  it  not  been  for  the  pre- 
sumption of  innocence,  that  of  the  continuance  of  life  would  have 
prevailed.'  So,  on  a  trial  for  bigamy,  where  a  woman  had  married 
again  only  four  years  after  she  had  separated  from  her  first  husband, 
the  court  held  that  the  lata  could  not  presume  the  continuance  of 
the  first  husband's  life,  but  that  it  was  a  question  of  fact  for  the 
jury  whether  he  was  alive  or  dead  at  the  date  of  the  second  marriage.^ 
But,  in  another  case,  where  the  point  in  issue  was  the  derivative 
settlement  of  a  man's  second  wife,  and  a  letter  was  proved  to  have 
been  written  by  the  first  wife  from  Van  Diemen's  Land,  bearing 
date  only  twenty-five  days  prior  to  the  second  marriage,  the  court 
confirmed  the  order  of  the  Sessions,  which  rested  on  the  presump- 
tion that  the  husband  had  been  guilty  of  bigamy.^  So,  where  a 
cabman  was  indicted  for  manslaughter  by  driving  his  cab  over  a 
woman,  the  fact  that  the  woman  had  been  killed  by  the  accident 
was  in  itself  regarded  by  the  court  as  prima  facie  evidence  of  negli- 
gence, sufficient  to  rebut  the  presumption  of  innocence,  and  to  shift 
on  to  the  driver  the  burthen  of  proving  that  he  had  exercised  due 
care  in  the  management  of  his  horse.* 


§  115.  An  exception  to  this  rule  respecting  the  presumption  of  ^  loo 
innocence,  is  admitted  in  some  cases  of  agency;  the  principle  of 
law  being,  both  in  criminal  and  civil  cases,  that  a  person  is  liable 
for  what  is  done  under  his  presumed  authority.^  Thus,  on  an 
indictment  against  a  contract  baker  for  selling  unwholesome  bread, 
where  it  appeared  that  the  defendant  allowed  his  foreman  to  use 


1  E.  V.  Twyning,  2  B.  &  A.  386.  See  E.  v.  Jones,  52  L.  J.,  M.  C.  96;  15 
Cox,  284,  S.  C. 

«  E.  V.  Lumley,  1  Law  Eep.,  C.  C.  196;  38  L.  J.,  M.  C.  86;  11  Cox,  274, 
S.  C;  E.  V.  Willshire,  L.  E.,  6  Q.  B.  D.  366;  50  L.  J.,  M.  C.  57;  and  14 
Cox,  541,  S.  C.  See  further,  E.  v.  Jones,  11  Cox,  358;  and  see,  as  to  the  pre- 
sumption of  life,  I?  198—203,  post. 

*  E.  V.  Harborne,  2  A.  &  E.  540;  E.  v.  Mansfield,  1  Q.  B.  449.  See,  also, 
Lapsley  v.  Grierson,  1  H.  of  L.  Cas.  498;  and  the  Breadalbane  case,  1  Law 
Eep.,  H.  L.,  Sc.  182,  cited  post,  ?  172. 

*  E.  V.  Cavendish,  I.  E.,  8  C.  L.  178. 

5  See  post,  §1  905,  906.  See,  also.  Cooper  v.  Slade,  6  H.  of  L.  Cas.  746,  793, 
794,  per  Ld.  Wensleydale. 

(3001) 


136  PRESUMPTION  OF  GUILT.  [PAET  I. 

alum,  though  not  in  such  quantities  as  to  render  the  bread  un- 
wholesome, Lord  Ellenborough  held  that  he  might  legally  be 
convicted,  on  proof  that  the  servant  had  introduced  alum  into 
the  bread  to  a  deleterious  extent.'  So,  for  the  purposes  of  the 
Pawnbrokers'  Act,  1872,  "  anything  done  or  omitted  by  the  servant, 
apprentice,  or  agent  of  a  pawnbroker,  in  the  course  of  or  in  relation 
to  the  business,"  shall  be  deemed  to  be  done  or  omitted  by  the 
pawnbroker.^  So,  the  directors  of  a  gas  company  were  held 
criminally  answerable,  on  an  indictment  for  a  nuisance,  for  an  act 
done  by  the  superintendent  and  engineer,  under  a  general  autho- 
rity to  manage  the  works,  though  they  were  personally  ignorant  of 
the  particular  plan  adopted,  and  though  such  plan  was  a  departure 
from  the  original  and  understood  method,  wnich  the  directors  had 
no  reason  to  suppose  was  discontinued.*  In  like  manner,*  where  a 
libel  is  sold  in  a  bookseller's  shop  by  his  servant  in  the  ordinary 
course  of  his  employment,  this  is  evidence  of  a  guilty  publication 
by  the  master;  though,  in  general,  an  authority  to  commit  a 
breach  of  the  law  is  not  to  be  presumed.  This  exception  is 
founded  upon  public  policy,  lest  irresponsible  persons  should  be 
put  forward,  and  the  principal  and  real  offender  shall  escape. 
But  such  evidence  is  not  conclusive  against  the  master,  who  may 
still  prove,  under  the  plea  of  not  guilty,  that  the  publication  was 
in  fact  made  "  without  his  authority,  consent,  or  knowledge,"  and 
that  there  was  "no  want  of  care  or  caution  on  his  part."  ^     The 

1  R.  V.  Dixon,  4  Camp.  12;  3  M.  &  S.  11,  S.  C.  See  Att.-Gen.  v.  Riddle,  2 
C.  &  J.  493;  2  Tyr.  523,  S.  C. ;  and  Searle  v.  Reynolds,  7  B.  &  S,  704. 

2  35  &  36  v.,  93,  ?  8. 

^  E.  V.  Medley,  6  C  &  P.  292.  Ld.  Denman,  in  summing  np,  observed: 
"  It  is  said  that  the  directors  were  ignorant  of  what  had  been  done.  In  my 
judgment  that  makes  no  difference;  provided  you  think  that  they  gave 
authority  to  the  superintendent  to  conduct  the  works,  they  will  be  answer- 
able. It  seems  to  be  both  common  sense  and  law,  that  if  persons  for  their 
own  advantage  employ  servants  to  conduct  works,  they  must  be  answerable 
for  what  is  done  by  those  servants,"  299.  See  R.  ?\  Stephens,  1  Law  Rep., 
Q.  B.  702;  35  L.  J.,  Q.  B.  251;  10  Cox,  340;  7  B.  &  S.  710,  S.  C. ;  Mullins 
V.  Collins,  9  Law  Rep.,  Q.  B.  292;  and  Betts  v.  Vitre,  3  Law  Rep.,  Ch.  Ap. 
442,  per  Lord  Chelmsford,  Ch.  But  see  also,  Dickinson  v.  Fletcher,  43  L.  J., 
M.  C.  25;  9  Law  Rep.,  C.  P.  1,  S.  C;  Somerset  v.  Hart,  53  L.  J.,  M.  C.  77. 

*  Gr.  Ev.  §  36,  in  part. 

*  6  &  7  v.,  c.  96,  ^  7.  As  to  the  law  before  the  stat.,  see  1  Russ.  C.  &  M. 
251;  R.  V.  Gutch,  M.  &  M.  433;  Harding  v.  Greening,  8  Taunt.  42;  R.  v. 
Alman,  5  Burr.  2686. 

(3002) 


[chap.  v.         suppressing  or  destroying  evidence,  137 

same  law  is  applied  to  the  publishers  of  newspapers/  and  to  the 
owners  of  alkali  works.  ^ 


§  116.'  The  presumption  of  innocence  may  be  overthrown,  and  §  loi 
a  presumption  of  guilt  be  raised,  by  the  misconduct  of  the  party  in 
suppressing  or  destroying  evidence,  which  he  ought  to  produce,  or 
to  which  the  other  party  is  entitled.*  Thus,  the  spoliation  of 
papers,  material  to  show  the  neutral  character  of  a  vessel,  fur- 
nishes a  strong  presumption,  in  odium  spoliatoris,  against  the 
ship's  neutrality.^  So,  if  any  person  on  board  a  vessel,  which  is 
being  chased  ,by  an  officer  of  the  preventive  service,  shall  throw 
overboard,  stave,  or  destroy  any  part  of  the  lading,  the  vessel  shall 
be  forfeited,  because  the  conduct  of  such  person  raises  an  almost 
irresistible  presumption  that  the  freight  so  made  away  with  was 
legally  liable  to  seizure."  So,  the  concealment  on  board  a  vessel 
of  any  goods,  which  are  liable  to  duty,  justifies  the  inference  that 
the  owner  intended  to  defraud  the  customs,  and  the  goods  will  con- 
sequently be  forfeited.'  A  similar  presumption  is  raised  against 
a  party,  who,  having  obtained  possession  of  papers  from  a  witness, 
after  the  service  of  a  subpoena  duces  tecum  upon  the  latter  for 
their  production,  withholds  them  at  the  trial.  ^  The  general  rule  is 
omnia  prcesumuntur  contra  spoliatorem.^     His  conduct  is  attributed 

1  1  Euss.  C.  &  M.  251;  R.  v.  Walter,  3  Esp.  21;  6  &  7  V.,  c.  96,  |  7;  R. 
V.  Holbrook,  L.  R.,  3Q.  B.  D.  60;  L.  R.,  4  Q.  B.  D.  42,  S.  C,  on  2nd  trial; 
14  Cox,  185,  S.  C. ;  R.  v.  Ramsay,  15  Cox,  231. 

M4  &  45  v.,  c.  37,  ?  25.  ^  Gr.  Ev.  §  37,  in  great  part. 

*  A  remarkable  instance  of  such  presumption  of  guilt  was  formerly  fur- 
nished by  the  Act  of  21  J.  1,  c.  27;  according  to  which  statute,  if  the  mother 
of  an  illegitimate  child  endeavoured  privately,  either  by  drowning,  or  secret 
burying,  or  by  any  other  way,_  to  conceal  its  death,  she  was  presumed  to  have 
murdered  it,  unless  she  could  prove  by  one  witness  at  the  least  that  the  child 
was  born  dead.  This  Act  was  probably  copied  from  a  similar  edict  of  H.  2 
of  France,  cited  by  Domat.  But  this  unreasonable  and  barbarous  rule  is  now 
rescinded  both  in  England  and  America.  See,  as  to  the  present  English  law, 
24  &  25  V.,  c.  100,  §  60. 

*  The  Hunter,  1  Dods.  Adm.  480;  The  Pizarro,  2  Wheat.  227;  1  Kent, 
Com.  157;  ante,  ^  107.  «  See  39  &  40  V.,  c.  36,  ^  180. 

'  See  39  &  40  V.,  c.  36,  §  177.  «  Leeds  v.  Cook,  4  Esp.  256. 

^  2  Poth.  Obi.  292;  Dalston  v.  Coatsworth,  1  P.  Wms.  731;  Cowper  v.  Ld. 
Cowper,  2  P.  Wms.  720,  748—752;  R.  v.  Arundel,  Hob.  109,  explained  in  2 
P.  Wms.  748,  749;  D.  of  Newcastle  v.  Kinderley,  8  Ves.  363,  375;  Gray  v. 
Haig.  20  Beav.  219;  Annesley  v.  E.  of  Anglesea,  17  How,  St.  Tr.  1430. 

(3003) 


138  FABRICATION  AND  NON-PRODUCTION  OF  EVIDENCE,      [PART  I. 

to  his  supposed  knowledge  that  the  truth  would  have  operated 
against  him.  Thus,  also,  where  the  finder  of  a  lost  jewel  would 
not  produce  it,  the  jury,  under  the  direction  of  the  judge,  presumed 
against  him,  that  it  was  of  the  highest  value  of  its  kind.'  But  if 
the  defendant  has  been  guilty  of  no  fraud  or  improper  conduct,  and 
the  only  evidence  against  him  is  the  delivery  to  him  of  the  plain- 
tilT's  goods,  of  unknown  quality,  the  presumption  is  that  they  were 
goods  of  the  cheapest  quality.^ 

§  117.^  The  mere  fabrication  of  evidence  does  not  furnish  of  j  j^02 
itself  any  presumption  of  law  against  the  innocence  of  the  party, 
but  is  a  matter  to  be  dealt  with  by  the  jury.  Innocent  persons, 
under  the  influence  of  ten'or  from  the  danger  of  their  situation, 
have  been  sometimes  led  to  the  simulation  of  exculpatory  facts; 
of  which  several  instances  are  stated  in  the  books.*  Again,  the 
exercise  by  a  client  of  his  undoubted  right  to  prevent  his  solicitor 
from  disclosing  confidential  communications,  can  form  no  jvist 
ground  for  adverse  presumption  against  him.^  Neither  has  the 
mere  non- production  of  deeds  or  papers,  upon  notice,  any  other 
legal  effect  in  general,  than  to  admit  the  other  party  to  prove  their 
contents  by  parol,*^  and,  as  against  the  party  refusing  to  produce 
them,  to  raise  a  prima  facie  presumption  that  they  have  been 
properly  stamped.'  It  cannot,  however,  be  denied,  but  that  such 
conduct,  in  the  absence  of  all  excuse,  is  calculated  to  produce  in 
the  minds  of  the  jury  a  very  prejudicial  effect  against  any  person 
having  recourse  to  it;^  and  if  such  person  be  charged  with  fraud  or 
other  misconduct,  and  the  production  of  his  papers  would  establish 
his  guilt  or  innocence,  the  jury  will  be  amply  justified  in  presuming 


See,  also,  Sir  S.  Romilly's  argument  in  Ld.  Melville's  case,  29  How.  St.  Tr. 
1194,  1195;  Anon.,  1  Ld.  Ray.  731.  In  Baker  v.  Ray,  2  Russ.  73,  the  Ld. 
Ch.  thought  that  this  rule  had  in  some  cases  been  pressed  a  little  too  far. 

1  Armory  v.  Delamirie,  1  Str.  505;  1  Smith,  L.  C.  301,  S.  C. 

^  Clunnes  v.  Pezzey,  1  Camp.  8.  ^  Gr.  Ev.  |  37,  as  to  first  six  line.?. 

*  See  3  Inst.   232;  Wills,  Cir.  Ev.  154. 

5  Wentworth  v.  Lloyd,  33  L.  J.,  Ch.  688,  per  Ld.  Chelmsford,  in  Dom. 
Proc. ;  10  H.  of  L.  Cas.  589,  S.  C.  ^  Cooper  v.  Gibbons,  3  Camp.  363. 

^  Crisp  V.  Anderson,  1  Stark.  R.  35.     See  ?  148,  post. 

*  See  Roe  v.  Harvey,  4  Burr.  2484,  per  Ld.  Mansfield ;  Bate  v.  Kinsey,  1 
C.  M.  &  R.  41,  per  Ld.  Lyndhurst;  Sutton  v.  Devonport,  27  L.  J.,  C.  P.  54; 
Edmonds  v.  Foster,  45  L.  J.,  C.  P.  41. 

(3004) 


CHAP,  v.]  UNLAWFUL  INTENT  WHEN  PRESUMED.  139 

him  guilty  from  the  unexplained  fact  of  their  non-production.'  On 
the  same  principle,  jurors  will  do  well  to  regard  with  suspicion  the 
conduct  of  any  party,  who,  having  it  in  his  power  to  produce  cogent 
evidence  in  support  of  his  case,  is  content  to  offer  testimony  of  a 
weaker  and  less  satisfactory  character.^ 


§  118.'  Though  the  general  presumption  of  law  is,  as  we  have  x  io3 
seen,  in  favour  of  innocence,  yet,  as  men  seldom  do  unlawful  acts  with 
innocent  intentions,  the  law  presumes  that  every  act,  which  in  itself 
is  unlawful,  has  been  wrongfully  intended,  till  the  contrary  appears.* 
Thus,  on  a  charge  of  murder,  malice  is  presumed  from  the  fact  of 
killing,  unaccompanied  by  circumstances  of  extenuation  ;  and  the 
burthen  of  disproving  the  malice  is  thrown  upon  the  accused.^  So, 
if  an  unauthorised  party,  with  the  view  of  raising  money,  has  put 
the  name  of  another  person  to  a  bill,  a  felonious  ihtent  will  be  pre- 
sumed, unless  the  accused  had  reasonable  grounds  for  believing  that 
he  was  authorised  to  act  as  he  did,  and  in  fact  acted  on  that  belief.® 
The  same  presumption  arises  in  civil  actions,  where  the  act  com- 
plained of  is  unlawful.  Thus,  in  actions  of  slander,  though  it 
should  appear  that  the  defendant  was  not  actuated  by  ill-will  against 
the  plaintiff,  malice  m  law  will  be  inferred  from  the  fact  of  inten- 
tional publication,  unless  the  defendant  can  show  that  his  language 
was  excusable  as  a  privileged  communication,  in  which  case  the 
plaintiff  must  establish  actual  malice,'  and  in  order  to  do  so,  must, 
either  by  extrinsic  or  by  intrinsic   evidence,*  prove  facts  which  are 

»  Clifton  V.  U.  S.,  4  Howard,  S.  Ct.  R.  242. 
2  See  N.  York  Civ.  Code,  I  1852,  art.  6  &  7. 
^  Gr.  Ev.  ?i  34,  as  to  first  seven  lines. 

*  Ld.  Mansfield  has,  in  clear  language,  pointed  out  the  distinction  between 
those  cases,  where  a  criminal  intent  must  be  proved,  and  those  where  it  will  be 
presumed: — "Where  an  act,  in  itself  indifferent,  if  done  with  a  particular  intent 
becomes  criminal,  there  the  intent  must  be  proved  and  found  ;  but  Avhere  the 
act  is  in  itself  unlmcful,  the  proof  of  justification  or  excuse  lies  on  the  defen- 
dant; and  in  failure  thereof,  the  law  implies  a  criminal  intent."  R.  v.  Wood- 
fall,  5  Burr.  2667.  See  also  R.  v.  Harvey,  2  B.  &  C.  257  ;  R.  v.  Wallace,  3 
Ir.  Law  R.,  N.  S.  38  ;  and  R.  v.  Creevey,  1  M.  &  Sel.  273. 

*  Post.,  C.  L.  255. 

«'R.  v.  Beard,  8  C.  &  P.  143,  148,  149,  per  Coleridge,  J, 

^  Clark  V.  Molyneux,   14  Cox,   10,  per  Ct.    of  App. ;  47  L.   J.,   Q.   B.   230; 
and  L.  R.,  3  Q.  B.  D.  237,  S.  C. 
«  Cooke  V.  Wildes,  5  E.  &  B.  328. 

(3005) 


140  UNLAWFUL  INTENT  WHEN  NOT  PRESUMED.  [PART  I. 

inconsistent  with  bona  fides.'  This  distinction  rests  upon  the 
ground  that,  when  words  are  proved  to  have  been  spoken  on  a 
justifiable  occasion,  the  law  raises  an  antagonistic  presumption,  that 
the  speaker  was  actuated  by  proper  motives.^  So,  in  other  actions 
for  damages  founded  on  wrongs,  as  for  a  malicious  arrest,  a  malicious 
prosecution,  and  the  like,  the  fact  that  the  defendant  has  had  recourse 
to  legal  proceedings  rai.es  a  prima  facie  inference  in  his  favour, 

'  Toogood  V.  Spyring,  1  C.  M.  &  R.  181,  193  ;  4  Tyr.  582,  S.  C;  Whitfield 
r.  South  East.  Rail.  Co.,  27  L.  J.,  Q.  B.  229  ;  1  E.  B.  &  E.  115,  S.  C;  Coxhead 
V.  Richards,  2  Com.  B.  569;  Spill  v.  Maule,  4  Law  Rep.,  Ex.  232;  Wright  t). 
Woodgate,  2  C.  M.  &  R.  573 ;  Tyr.  &  Gr.  12,  S.  C. ;  Taylor  v.  Hawkins,  16 
Q.  B.  308  ;  Gilpin  v.  Fowler,  9  Ex.  R.  615  ;  Somerville  v.  Hawkins,  10  Com. 
B.  583;  Harris  v.  Thompson,  13  Com.  B.  333;  R.  v.  Wallace,  3  Ir.  Law  R., 
N.  S.  38  ;  Bromage  v.  Prosser,  4  B.  &  C.  247 ;  6  D.  &  R.  296,  S.  C.  In  this 
last  case,  which  was  an  action  for  words  spoken  of  the  plaintiffs  in  their  busi- 
ness as  bankers,  the  law  of  implied  or  legal  malice,  as  distinguished  from 
malice  in  fact,  was  clearly  expounded  by  Bayley  J.,  in  the  following  terms  : — 
"Malice,  in  the  common  acceptation,  means  ill-will  against  a  person ;  but  in 
its  legal  sense  it  means  a  wrongful  act,  done  intentionally,  without  just  cause 
or  excuse.  If  I  give  a  perfect  stranger  a  blow  likely  to  produce  death,  I  do  it 
of  malice,  because  I  do  it  intentionally,  and  without  just  cause  or  excuse.  If 
I  maim  cattle,  without  knowing  whose  they  are  ;  if  I  poison  a  fishery,  without 
knowing  the  owner,  I  do  it  ot  malice,  because  it  is  a  wrongful  act,  and  done 
intentionally.  *  *  If  I  traduce  a  man,  whether  I  know  him  or  not,  and 
whether  I  intend  to  do  him  an  injury  or  not,  I  apprehend  the  law  considers  it 
as  done  of  malice,  because  it  is  wrongful  and  intentional.  It  equally  works 
an  injury,  whether  I  mean  to  produce  an  injury  or  not,  and  if  I  had  no  legal 
excuse  for  the  slander,  why  is  he  not  to  have  a  remedy  against  me  for  the 
injury  it  produces?  And  I  apprehend  the  law  recognises  the  distinction 
between  these  two  descriptions  of  malice,  malice  in  fact,  and  malice  in  law, 
in  actions  of  slander.  In  an  ordinary  action  for  words,  it  is  sufficient  to  charge 
that  the  defendant  spoke  them  falsely;  it  is  not  necessary  to  state  that  they 
were  spoken  maliciously.  This  is  so  laid  down  in  Sty.  392,  and  was  adjudged 
upon  error  in  Mercer  v.  Sparkes,  Owen,  51 ;  Noy,  35.  The  objection  there 
was,  that  the  words  were  not  charged  to  have  been  spoken  maliciously,  but 
the  court  answered,  that  the  words  were  themselves  malicious  and  slanderous, 
and,  therefore,  the  judgment  was  affirmed.  But  in  actions  for  such  slander  as 
is  prima  facie  excusable  on  account  of  the  cause  of  speaking  or  ^vriting  it,  as 
in  the  case  of  servants'  characters,  confidential  advice,  or  communications  to 
persons  who  ask  it,  or  have  a  right  to  expect  it,  malice  in  fiict  must  be  proved 
by  the  plaintiff,  and  in  Edmondson  r.  Stevenson,  B.  N.  P.  8,  Ld.  Mansfield 
takes  the  distinction  between  these  and  ordinary  actions  of  slander."  In  an 
action  for  an  alleged  libel  contained  in  an  answer  to  inquiries  respecting  the 
character  of  a  servant,  the  jury  may  find  express  malice  from  the  simple  fact, 
that  the  answer  complained  of  was  untrue  to  the  defendant's  knowledge  ; 
Fountain  v.  Boodle,  3  Q.  B.  5. 

2  Note  b  to  Hodgson  v.  Scarlett,  1  B.  &  A.  245,  246  ;  approved  of  by 
Alderson,  B.,  in  Gibbs  v.  Pike,  9  M.  &  W.  358. 

(3006) 


CHAP,  v.]  BOUNDARIES — RIPARIAN  OWNERSHIP.  141 

which  the  plaintiff  is  bound  to  rebut  by  proving  the  absence  of  all 
reasonable  and  probable  cause,'  and  the  presence  of  an  actual 
malicious  intent.^ 

§  119.  Some  presumptions  with  respect  to  the  ownership  of  §  104 
property  may  conveniently  here  be  noticed.  And  first,  as  to  the 
boundaries  of  property.''  Where  two  counties  or  parishes  are 
separated  by  a  non-tidal*  river,  the  mid- stream  is  the  presumptive 
boundary  between  them.^  Again,  the  owner  of  a  several  fishery, 
when  the  terms  of  the  grant  are  unknown,  is  presumed  to  be  the 
owner  of  the  soil.^  The  law,  too,  presumes  that  the  soil  of  un- 
navigable  rivers,  usque  ad  medium  filum  aquae,  together  with  the 
right  of  fishing,— but  not  the  right  of  abridging  the  width,  or 
interfering  with  the  course,  of  the  stream,'— belongs  to  the  owner 
of  the  adjacent  land;^  while,  in  navigable  rivers  and  arms  of  the 
sea,  the  soil  prima  facie  is  vested  in  the  Crown,  and  the  fishery 
prima  facie  is  public.®  These  presumptions  as  to  riparian  ownership 
in  streams,  do  not  apply  to  great  non-tidal  inland   lakes,  whether 

1  Abrath  v.  North  East.  Ry.  Co.,  15  Cox,  ;554,  S.  C. ;  52  L.  J.,  Q.  B.  620;  and 
L.  R.,  11  Q.  B.  D.  440,  per  Ct.  of  App.,  overruling  S.  C.  52  L.  J.,  Q.  B.  352; 
and  L.  R.,  11  Q.  B.  D.  79. 

2  Mitchell  V.  Jenkins,  5  B.  &  Ad.  588;  Porter  v.  Weston,  5  Bing.  N.  C. 
715;  Johnstone  v.  Sutton,  1  T.  R.  545.  The  jury  may,  but  are  not  bound,  to 
infer  malice  in  fact  from  the  want  of  probable  cause.     Id. 

'  As  to  boundaries  of  counties,  &c.,  in  Ireland,  see  35  &  36  V.,  c.  48,  ?§  2, 
3,  4,  cited  post,  §  1771. 

*  Bridgwater  Trust  v.  Bootle-cum-Linacre,  2  Law  Rep.,  Q.  B.  4;  36  L.  J., 
Q.  B.  41;  and  7  B.  &  S.  348,  S.  C. 

^  R.  V.  Landulph,  1  M.  &  Rob.  393,  per  Patteson,  J.;  M'Cannon  v.  Sinclair, 
2  E.  &  E.  53;  R.  v.  Strand  Board  of  Works,  4  B.  &  S.  526;  33  L.  J.,  M.  C. 
33,  S.  C. 

«  D.  of  Somerset  v.  Fogwell,  5  B.  &  C.  875;  1  D.  &  R.  747,  S.  C. ;  Holford 
V.  Bailey,  8  Q.  B.  1000;  13  Q.  B.  427,  S.  C.  in  error;  Marshall  v.  The  Ulles- 
water  St.  Navig.  Co.,  32  L.  J.,  Q.  B.  139;  3  B.  &  S.  732,  S.  C.  But  see  some 
very  able  observations,  contra,  made  by  Cockburn,  C.  J.,  in  S.  C,  32  L.  J., 
Q.  B.  144,  145;  and  3  B.  &  S.  747—749;  also,  Bloomfield  v.  Wharton,  I.  R. 
8  C.  L.  68,  cited  in  next  note  but  one. 

'  Bickett  V.  Morris,  1  Law  Rep.,  H.  L.,  Sc.  47. 

^Carter  v.  Murcot,  4  Burr.  2163;  Wishart  v.  Wyllie,  1  Macq.  Sc.  Cas.,  H. 
of  L.  389;  Lord  v.  Commiss.  for  City  of  Sydney,  12  Moo.  P.  C.  R.  473; 
Crossley  v.  Lightowler,  3  Law  Rep.,  Eq.  279;  2  Law  Rep.,  Ch.  App.  478;  and 
36  L.  J.,  Ch.  584,  S.  C;  Dwyer  v.  Rich,I.  R.  6  C.  L.  144. 

®  Carter  v.  Murcot,  4  Burr.  2163;  Malcomson  v.  O'Dea,  10  H.  of  L.  Cas. 
593. 

(3007) 


142  PRESUMPTIONS  RESPECTING  BOUNDARIES.  [pART  I. 

they  be  navigable  or  not;'  but  somewhat  similar  presumptions  are 
recognised  in  respect  of  land  lying  on  the  sea  shore;  for  that 
which  is  covered  by  the  ordinary  high  water, — or  to  speak  more 
accurately,  by  the  medium  high  tide  between  the  spring  and  the 
neap," — is  presumed  prima  facie  to  be  the  property  of  the  Crown, 
though  by  grant  or  prescription  it  may  belong  to  the  lord  of  the 
manor,  or  to  any  other  subject;^  while,  on  the  other  hand, 
that  part  of  the  shore  which  is  overflowed  only  at  spring  tide,  is 
presumed  to  be  vested  in  the  proprietor  of  the  adjoining  lands/ 
So,  land  between  high  and  low  water  mark,  though  forming  a  part  of 
the  body  of  the  adjoining  county,^  is  prima  facie  presumed  to  be 
extra -parochial;^  and  this  presumption  applies  to  an  estuary  or 
arm  of  the  sea,'  and  also  to  the  shore  of  a  tidal  river,  as  well  as  to 
the  main  sea-shore/  Again,  waste  land  on  the  sides,  and  the  soil 
to  the  middle,  of  a  highway,  are,  in  the  absence  of  evidence  to  the 
contrary,  presumed  to  belong  to  the  owner  of  the  adjoining  inclosed 
land,  whether  he  be  a  freeholder,  leaseholder,  or  copyholder."  This 
rule,  being  founded  on  a  supposition  that  the  proprietor  of  the 
adjoining  land,  at  some  former  period,  gave  up  to  the  public  for 
passage  all  the  land  between  his  inclosute  and  the  middle  of  the 
road,'"  is  liable  to  be  rebutted  by  showing  that  the  road  has  never 


^  Bloomfield  v.  Wharton,  I.  R.,  8  C.  L.  68;  Bristow  v.  Corinican,  3  App.  Cas. 
641,  6G7,  perH.  L.  (I.). 

2  Att.-Gen.  v.  Chambers,  23  L.  J.,  Ch.  662;  4  De  Gex,  M.  &  G.  206,  S.  C. 

2  Blundell  v.  Catterall,  5  B.  &  A.  293,  298,  per  Holroyd,  J. ;  and  304,  per 
Bayley,  J.;  Lopez  v.  Andrew,  3  M.  &  R,  329  «;  Calmady  v.  Rowe,  6  Com. 
B.  861,  878,  879.     See  post,  U  130,  131. 

*  Lowe  V.  Govett,  3  B.  &  Ad.  863. 

*  Embleton  v.  Brown,  3  E.  &  E.  234. 

6R.  V.  Musson,  27  L.  J.,  M.  C.  100;  8  E.  &  B.  900,  S.  C;  Waterloo 
Bridge  Co.  v.  Cull,  28  L.  J.,  Q.  B.  75,  per  Ld.  Campbell. 

'  Ipswich  Dock  Commiss.  v.  St.  Peter,  Ipswich,  7  B.  &  S.  310. 

^  Bridgwater  Trust  v.  Bootle-cum-Linacre,  2  Law  Rep.,  Q.  B.  4;  36  L  J., 
Q.  B.  41;  and  7  B.  &  S.  348,  S.  C. 

»  Doe  V.  Pearsey,  7  B.  &  C.  304;  9  D.  &  R.  908,  S.  C;  Steel  v.  Prickett, 
2  Stark.  R.  463,  per  Abbott,  C.  J.;  Cooke  v.  Green,  11  Price,  7.36;  Scoones 
V.  Morrell,  1  Beav.  251;  M.  of  Salisbury  v.  Gt.  North.  Rail.  Co.,  5  Com.  B., 
N.  S.  174;  Simpson  v.  Dendy,  8  Com.  B.,  N.  S.  433;  Berridge  v.  Ward,  30 
L.  J.,  C.  P.  218;  10  Com.  B.,  N.  S.  400,  S.  C;  R.  v.  Strand  Board  of  Works, 
33  L.  J.,  M.  C.  33;  4  B.  &  S.  526,  S.  C.  See  Gery  v.  Redman,  L.  R.  1  Q.  B. 
D.  161;  45  L.  J.,  Q.  B.  267,  S.  C. 

'0  Doe  V.  Pearsey,  7  B.  &  C.  306,  per  Bayley,  J. 

(3008) 


CHAP,  v.]  RIGHT  OF  OWNERS  OF  ADJOINING  LANDS.  143 

in  fact  been  dedicated  to  the  public  at  all,"  or  that  it  was  originally 
dedicated  by  some  other  party  ; "  and  the  presumption  may  also  be 
repelled  by  proof  that  the  lord  of  the  manor,  or  even  that  a  stranger, 
has  exercised  acts  of  ownership,  either  over  the  spot  in  dispute,  or 
over  other  waste  land  in  immediate  connexion  with  it.^  The  pre- 
sumption just  referred  to  as  prevailing  in  the  case  of  a  public  high- 
way, will  also  be  recognised  in  the  case  of  a  private  occupation  road 
running  between  two  properties  ;  and,  in  the  absence  of  all  evidence 
of  acts  of  ownership,  the  soil  of  the  road  will  be  deemed  to  belong 
to  the  owners  of  the  adjoining  lands  in  equal  moieties  ;  that  is, 
each  owner  will  be  presumed  to  be  the  proprietor  of  the  soil  usque 
ad  medium  filum  vise/  The  mere  fact  that  the  owner  of  a  field  has 
a  private  right  of  way  over  a  lane  leading  only  to  that  field,  affords 
no  presumption  that  the  soil  of  the  lane  is  vested  in  him.'^  As  to 
roads  set  out  under  the  first  general  Inclosure  Act,  "  the  herbage 
and  grass  arising  therefrom  "  are  conclusively  presumed  to  belong 
to  the  proprietors  of  the  adjoining  lands  ;  *^  and  as  to  those  made 
under  the  later  Act  of  William  the  Fourth,  the  commissioners  are 
directed  to  award  "  the  grass  and  herbage  growing  and  renewing 
upon  "  them  to  such  persons  as  in  their  judgment  are  best  entitled 
to  the  same.^  But  both  Acts  are  silent  respecting  the  ownership 
of  the  soil,  and  it  seems  that  as  to  that,  no  legal  presumption  can 
arise  in  favour  of  the  proprietors  of  the  neighbouring  allotments.* 


§  120.  Where  fields  belonging  to  different  owners  are  separated    x  105 
by  a  hedge  and  ditch,  the  hedge  prima  facie  belongs  to  the  owner  of 
the  field  in  which  the  ditch  is  not ;  but  if  there  are  two  ditches,  one 


^  Leigh  V.  Jack,  49  L.  J.,  Ex.  220,  per  Ct.  of  App.;  L.  E.,  5  Ex.  D.  264, 
S.  C. 

^  Headlam  v.  Headley,  Holt,  N.  P.  R.  463,  per  Bayley,  J. 

3  Doe  V.  Kemp,  2  Bing.  N.  C.  102  ;  2  Scott,  9,  S.  C.  ;  Grose  v.  West,  7 
Taunt.  39;  Anon.,  Loflft,  358;  Doe  v.  Kemp,  7  Bing.  332;  5  M.  &  P.  173, 
S.  C. ;  Doe  v.  Hampson,  4  Com.  B.  267  ;  Beckett  v.  Corp.  of  Leeds,  7  Law  Rep., 
Ch.  Ap.  421. 

*  Holmes  v.  Bellingham,  29  L.  J.,  C.  P.  132  ;  7  Com.  B.,  N.  S.  329,  S.  C. 

*  Smith  V.  Howden.  2  New  R.  30  ;  14  C.  B.,  N.  S.  398,  S.  C. 

«  41  G.  3,  c.  109,  UL  '  6  &  7  W.  4,  c.  115,  ?  29. 

«  R.  V.  Hatfield,  4  A.  &  E.  164,  per  Ld.  Denman  ;  R.  v.  Edmonton,  1  M.  & 
Rob.  32,  per  Ld.  Tenterden. 

(3009) 


144  ADJOINING  OWNERS — SURFACE  OWNERS.  [PAET  I. 

on  each  side,  the  ownership  of  the  hedge  must  depend  upon  evidence 
of  acts  of  ownership.'  The  common  user  of  a  wall  separating  lands 
or  houses  which  belong  to  different  proprietors,  is  prima  facie 
evidence  that  the  wall,  and  the  land  on  which  it  stands,  belong  to 
them  in  equal  moieties  as  tenants  in  common.^  But  this  presump- 
tion may  be  rebutted  by  showing  that  the  wall  in  fact  stands  on 
land,  parts  of  which  were  separately  contributed  by  each  proprietor.^ 
Where  a  tree  grows  on  the  boundary  of  two  fields,  so  that  the  roots 
extend  into  the  soil  of  each,  the  property  in  the  tree  is  presumed 
to  belong  to  the  owner  of  that  land  in  which  it  was  first  sown  or 
planted.*  In  the  work  of  Mr.  Callis  on  Sewers,^  a  distinction  is 
drawn  between  a  bank  and  a  wall  ;  the  former,  being  made  of  earth 
taken  from  the  adjacent  soil,  is  presumed  to  belong  to  the  party 
whose  land  adjoins  thereto  ;  the  latter,  being  built  of  materials 
brought  from  a  distance,  is  prima  facie  the  property  of  the  person 
who  is  bound  to  repair  it.  This  distinction  has  been  recognised  in 
one  case  by  the  Court.  ° 


§  121.     When  the  surface  of  land  and  the  subjacent  minerals  are    ^  loe 
vested  in  different  owners  without  any  deeds'  appearing  to  regulate 
their  respective  rights,  the  law  presumes  that  the  owner  of  the 
surface  has  a  right  to  the  support  of  the  minerals.*     So,  when  a 

^  Guy  V.  West,  2  Sel.  N.  P.  1296,  per  Bayley,  J.  In  Franca,  boundary 
hedges  and  the  trees  in  them  are  declared  to  be  common  property,  "mitoyens," 
except  in  certain  cases  ;  Code  Civ.,  Art.  670,  673. 

2  Cubitt  V.  Porter,  8  B.  &  C.  257  ;  2  M.  &  E.  267,  S.  C.  ;  Wiltshire  v.  Sidford, 
1  M.  &  R.  404  ;  8  B.  &  C.  259  n.,  S.  C.  ;  Watson  v.  Gray,  L.  R.,  14  Ch.  D.  192, 
per  Fry,  J.  ;  49  L.  J.,  Ch.  243,  S.  C. 

'  Matts  V.  Hawkins,  5  Taunt.  20  ;  Murly  v.  M'Dermott,  8  A.  &E.  138  ;  3  N. 
&  P.  256,  S.  C. 

*  Holder  v.  Coates,  M.  &  M.  112,  per  Littledale,  J.  ;  Masters  v.  Pollie,  2 
Roll.  R.  141  ;  contra,  Waterman  v.  Soper,  1  Ld.  Ray.  737;  Anon.,  2  Roll.  R. 
255.  5  P.  74,  4th  Ed. 

«  D.  of  Newcastle  v.  Clark,  8  Taunt.  627,  628,  per  Park,  J. 

'  Where  such  deeds  exist,  see  Aspden  v.  Seddon,  44  L.  J.,  Ch.  359,  per  Lds. 
Js.  ;  10  Law  Rep,,  Ch.  Ap.  394,  S.  C.  ;  Davis  v.  Treharne,  50  L.  J.,  Ch.  665 
per  Dom.  Proc. 

«  Humphries  v.  Brogden,  12  Q.  B.  739,  746  ;  Smart  i'.  Morton,  5  E.  &  B. 
30  ;  Harris  v.  Ryding,  5  M.  &  W.  60  ;  Roberts  v.  Haines,  25  L.  J.,  Q.  B, 
353  ;  6  E.  &  B.  643,  S.  C.  ;  aff.  in  Ex.  Ch.,  Haines  v.  Roberts,  7  E.  &  B.  625  ; 
Rowbotham  v.  Wilson,  6  E.  «&  B.  593  ;  27  L.  J.,  Q.  B.  61,  and  8  E.  &  B. 
123,  S.  C.  in  Ex.  Ch.  :  8  H.  of  L.  Cas.  348,   and  30  L.  J.,  Q.   B.    49,  S.  C,  in 

(3010) 


CHAP,  v.]    PROPKIETORS  OF  FLATS — LATERAL  SUPPORT.         145 

house  is  divided  into  diflFerent  flats,  the  proprietor  of  the  upper 
story  has  a  presumptive  legal  right,  without  any  express  grant,  or 
enjoyment  for  any  given  time,  to  the  support  of  the  lower  story, 
and  the  owner  of  the  lower  story  is  also  entitled  to  the  protection 
afforded  by  the  upper  rooms  as  a  roof  or  covering  for  his  dwelling.' 
On  a  similar  principle  it  has  long  been  held  that,  when  two  adjoin- 
ing closes,  or,  it  may  be,  two  ancient  buildings,^  belong  respectively 
to  different  persons,  the  owner  of  the  one  has  a  limited  right  ^  to 
the  lateral  supjjort  of  the  other;*  and  although  this  doctrine  does 
not  extend  to  a  case  where,  by  the  erection  of  modern  buildings,  an 
additional  weight  has  been  put  upon  the  land,^  yet  the  law  will 
presume  the  grant  of  an  easement  entitling  the  grantor  to  have  his 
house  supported  by  the  soil  of  his  neighbour's  property,  if  the 
house  has  been  built  for  more  than  twenty  years,®  and  the  ease- 

Dom.   Proc. ;  Caledonian   Ry.   Co.   v.   Sprot,   2  Macq.   Sc.   Cas.   H.  of  L.  449.  ' 
See  Elliot  v.  The  N.-East  Ry.  Co.,  .32  L.  J.,  Ch.  402,  per  Dom.  Proc;  10  H.  of 
L.  Cas.  333,  S.   C;  Brown  v.  Robi^ns,  4  H.  &  N.  186;  Fletchers.  Gt.  W.  Ry.  | 
Co.,  4  H.  &  N.  242;  29  L.   J.,   Ex.  253,   S.   C.   in  Ex.   Ch.;  Gt.   W.    Ry.  Co.  i 
r.  Bennett,  36  L.  J.,  Q.  B.  133,  per  Dom.  Proc.;  2  Law  Rep.,  H.  L.  27,  S.  C; 
Pountney  v.    Clayton,   L.   R.,   11  Q.    B.   D.  820,   per  Ct.  of  App. ;  Jeffries  v. 
Williams,   5  Ex.    R.   792;  Rogers  v.   Taylor,   2  H.   &  N.   828;  27  L.  J.,  Ex. 
173,  S.   C;  Eaclon  v.  Jeffcock,  7  Law  Rep.,  Ex.  379;  42  L.  J.,  Ex.  36,  S.  C; 
Hext  V.   Gill,  7  Law  Rep.,   Ch.    Ap.  699;  Dugdale  v.  Robertson,  3  Kay  &  J.  , 
695;  Bonomi  r.   Backhouse,  27  L.  J.,  Q.  B.  378;  1  E.  B.  &  E.  622,  654,  S.  C,  : 
in  which  last  case  it  was  held,  that  this  right  was  an  ordinary  right  of  pro- 
perty incidental  to  all  land,  and  was  not  a  right  founded  on  any  presumption 
of  a  grant  or  an   easement.     See  S.   C.   in  Dom.   Proc,  nom.  Backhouse  v. 
Bonomi,  9  H.   of  L.   Cas.   503.     Also,  Wakefield  v.   D.  of  Buccleuch^  4  Law 
Rep..  Eq.  013,  per  ]\Ialins,  V.-C,  in  a  very  elaborate  judgment;    36  L.  J.,  Ch. 
763,  S.  C;  also,   May.   of  Birmingham  v.    Allen,  46  L.  J.,  Ch.  673,  per  Ct.  of 
App.;  L.   R.,  6   Ch.   D.  284,  S.  C.;  Lamb  v.  Walker,   L.   R.,  3  Q.  B.   D.  389; 
47  L.  J..  Q.   B.  451,  S.  C;  Dixon  r.  White,  L.  R.,  8  App.  Cas.  833,  per  Dom.  , 
Pr.  (Sc).     See,  also,   Mitchell   v.   Darley  Main  Coll.  Co.,  .53  L.  J.,  Q.  B.  470,  ' 
where  Lamb  v.  Walker,  cited  above,  was  overruled  by  Court  of  App.,  which 
held  that  every  fresh  subsidence  in  a  worked-out  mine  gave  rise  to  a  fresh 
cause  of  action. 

'  Humphries  v.  Brogden,  12  Q.  B.  747,  756,  757;  Caledonian  Ry.  Co.  v. 
Sprot,  2  Macq.  Sc.  Cas.,  H.  of  L.  449. 

''  Lemaitre  v.  Davis,   L.   R.,  19  Ch.   D.   281,  per  Hall,  V.'-C;  51  L.  J.,  Ch.  ; 
17.3,  S.  C. 

3  See  Smith  v.  Thackeray,  1  Law  Rep.,  C.  P.  564;  1  H.  &  R.  615,  S.  C;  and 
Siddons  v.  Sliort,  L.  R.,  2  C.  P.  D.  572;  46  L.  J.,  C.  P.  795,  S.  C. 

*  2  Roll.  Abr.  564,  Trespass,  I.,  pi.  1,  cited  in  12  Q.  B.  743. 

^  Murchie  v.  Black,  34  L.  J.,  C.  P.  337. 

«  Wyatt  V.  Harrison,  3  B.  &  Ad.  871;  Hide  v.  Thornborough,  2  C.  &  Kir. 
250;  Partridge  v.  Scott,  3  M.  &  W.  220,  all  of  which  cases  are  commented  on 
in  Humphries  v.  Brogden,  12  Q.  B.  748 — 750.  See  Hunt  v.  Peake,  1  V.  .Tohns. 
705;  Jeffi-ies  v.  Williams,  5  Ex.  R.  792;  Rogers  v.  Taylor,  2  H.  &  N.  828;  27 
L.  J.,  Ex.  173,  S.  C. 

10  LAW  OF  EVID. — V.  I.  (3011)  , 


146  LATERAL  SUPPORT WASTE  LANDS.  [PART  I. 

ment  has  been  enjoyed  peaceably,  openly,  and  without  any  attempt 
at  deception  or  concealment.'  So,  where  a  landowner  has  built  two 
or  more  houses  adjoining  each  other,  so  as  to  require  mutual  sup- 
port, or  mutual  drainage,  and  has  afterwards  parted  with  his  inte- 
rest in  the  several  houses  to  different  persons,  the  law  will,  in 
general,"  presume  either  a  grant  or  reservation,  that  will  entitle 
each  owner  to  have  his  house  supported  by,''  or  drained  through,* 
the  adjoining  buildings.  "Where,  however,  a  dock  and  a  wharf  had 
belonged  to  the  same  owner,  and  the  bowsprits  of  vessels  in  the 
dock  had  for  many  years  projected  over  a  part  of  the  wharf,  the 
court  held,  that,  in  a  subsequent  grant  of  the  wharf,  the  law  would 
not  imply,  in  favour  of  the  vendor,  a  reservation  of  the  right  for  the 
bowsprits  to  project  over  the  wharf  as  before.^ 

§  122.  The  law  also  pi'esumes  prima,  facie  that  the  lord  of  a  §  107 
manor  is  entitled  to  all  waste  lands  within  the  manor;  and  there- 
fore it  is  not  essentially  necessary  that  he  should  show  acts  of 
ownership  upon  them.*  So,  the  lord, — who,  by  virtue  of  his  owner- 
ship of  the  soil,  is  entitled  to  take  gravel,  marl,  loam,  or  subsoil  in 
the  waste  either  for  his  private  use  or  for  sale,  so  long  as  he  does 
not  infringe  on  the  rights  of  the  commoners, — will  be  presumed,  in 
exercising  this  limited  right,  not  to  have  exceeded  his  limited 
powers,  unless  the  tenants  can  adduce  some  evidence  to  the  con- 

'  Dalton  V.  Angus,  L.  11.,  6  App.  Cas.  740,  per  Dom.  Proc. ;  50  L.  J.,  Q.  B. 
689.  S.  C;  aflf.  S.  C,  L.  E.,  4  Q.  B.  D.  162,  per  Ct.  of  App.;  and  48  L.  J., 
Q.  B.  225;  and  overruling  Angus  v.  Dalton,  L.  R.,  3  Q.  B.  D.  85;  and  47  L. 
J.,  Q.  B.  163.  See  also  Bell  v.  Love,  L.  E.,  10  Q.  B.  D.  547;  S.  C.  aflfd.  in 
Dom.  Proc,  53  L.  J.,  Ch.  257,  nom.  Love  v.  Bell;  and  L.  E.  9  App.  Cas.  286. 

2  See  Murchie  v.  Black,  34  L.  J.,  C.  P.  337. 

»  Eichards  v.  Eose,  9  Ex.  E.  218.  See  Solomon  v.  Vintners'  Co.,  4  H.  &  N. 
585,  and  Kempston  v.  Butler,  12  Jr.  Law  E.,  N.  S.  516. 

*  Pyer  v.  Carter,  26  L.  J.,  Ex.  258;  1  H.  &  N.  916,  S.  C;  Hall  v.  Lund, 
32  L.  J.,  Ex.  113.  The  authority  of  Pyer  v.  Carter  has  been  denied  by  Ld. 
Westbury,  Ch.,  in  Suffield  v.  Brown,  3  New  E.  343,  344;  33  L.  J.,  Ch.  259, 
260;  4  De  Gex,  J.  &  S.  185,  S.  C.  See  Pearson  v.  Spencer,  3  B.  &  S.  761; 
Wheeldon  r.  Burrows,  L.  E.,  12  Ch.  D.  31,  per  Ct.  of  App.;  48  L.  J.,  Ch. 
853,  S.  C;  Polden  v.  Bastard,  4  B.  &  S.  258;  35  L.  J.,  Q.  B.  92,  S.  C.  in  Ex. 
Ch.;  and  1  Law  Eep.,  Q.  B.  156,  S.  C. ;  Watts  v.  Kelson,  40  L.  J.,  Ch.  126; 
6  Law  Eep.,  Ch.  Ap.  166,  S.  C. 

5  Suffield  V.  Brown,  3  New  E.  .340;  33  L.  J.,  Ch.  249;  4  De  Gex,  J.  &  S. 
185,  S.  C.,per  Ld.  Westbury,  Ch.,  reversing  a  decision  of  Eomilly,  M.  E.,  2 
New  E.  378. 

«  Doe  V.  Williams,  7  C.  &  P.  332,  per  Coleridge,  J. 

(3012J 


CHAP,  v.]  PRESUMPTION  ARISING  FROM  POSSESSION.  147 

trary.'  This  rule  is  the  more  deserving  of  notice,  because  the  pre- 
sumption is  against  the  lord  in  the  case  of  approvement,  apparently 
on  the  ground  that,  as  he  has  made  a  grant  over  the  whole  waste, 
his  right  to  inclose  any  portion  of  it  must  be  conditional  on  his 
establishing  that  sufficient  waste  is  left  for  the  tenants  to  enjoy 
their  rights  of  common."  It  is  now  clearly  established,^ — though  the 
point  was  formerly  much  doubted, ' — that  when  a  tenant  encroaches 
upon  the  waste  contiguous  to  his  farm  and  incloses  it,  he  is  to  be 
presumed,  in  the  absence  of  acts  proving  a  contrary  intention,  to 
have  thus  acted  for  the  benefit  of  his  landlord.*  This  presumption 
will  be  recognised  even  though  the  lands  inclosed  be  the  property 
of  a  stranger;^  but  it  will  doubtless  be  much  strengthened,  if  the 
landlord  of  the  farm  be  also  the  lord  of  the  waste. "^ 

§  123.  As  men  generally  own  the  property  they  possess,  proof    §  108 
of  loossessioii  is  presumptive  proof  of  oivnershipj     This  presump- 
tion is  recognised  in  the  Factors'   Acts,^  in  the  Irish,  Scotch,  and 
English  Acts  relating  to  injuries   done  by  dogs  to  sheep,**  in  the 
Pawnbrokers'  Act,  1872,  so  far  as  relates  to  the  holders  of  pawn- 

1  Hall;;.  Byron,  L.  R.,  4  Ch.  D.  667,  G80,  per  Hall,  V.-C;  46  L.  J.,  Ch. 
297,  S.  C. 

2  Id. ;  Arlett  t;.  Ellis,  7  B.  &,  C.  346,  370,  per  Bayley,  J.;  Lascelles  r.  Ld. 
Onslow,  46  L.  J.,  Q.  B.,  343,  per  Lush,  J.;  L.  E.,  2  Q.  B.  D.  433,  450,  S.  C. 

^  Doei;.  Mulliner,  1  Esp.  460,  per  Ld.  Kenyon;  Doe  v.  Davies,  id.  461. 

*  Doe  V.  Jones,  15  M.  &  W.  580;  Andrews  v.  Hailes,  2  E.  &  B.  349;  Kings- 
mill  V.  Millard,  11  Ex.  R.  313;  Ld.  Lisburne  v.  Davies,  1  Law  Rep.,  C.  P. 
259;  1  H.  &  R.  172.  S.  C;  35  L.  J.,  C.  V.  193,  S.  C;  Doe  v.  Massey,  17  Q. 
B.  373;  Doer.  Williams,  7  C.  &  P.  332;  Doer.  Miirrell,  8  C.  &  P.  134,  per 
Ld.  Abinger;  Doer.  Rees,  6  C.  &  P.  610,  per  Parke,  B.;  Doer.  Tidbury,  14 
Com.  B.  304;  Whitmore  v.  Humphries,  7  Law  Rep.,  C.  P.  1;  41  L.  J.,  C.  P. 
43,  S.  C;  Att.-Gen.  v.  Tomline,  L.  R.,  5  Ch.  D.  750;  46  L.  J.,  Ch.  654,  S.  C; 
and  S.  C.  on  App.,  L.  R.,  15  Ch.  D.  150.  ^  Cases  cited  in  last  note. 

^  Bryan  v.  Winwood,  1  Taunt.  208. 

'  Webb  V.  Fox,  7  T.  R.  397,  per  L.  Kenyon. 

8  6  G.  4,  c.  94;  5  &  6  v.,  c.  39,  ?^  1;  40  &  41  V.,  c.  39.  See  Heyman  v.  Flewker, 
13  Com.  B.,  N.  S.  519;  Baines  v.  Swainson,  4  B.  &  S.  270;  Fuentes  v.  Montis, 
4  Law  Rep.,  C.  P.  93,  per  Ex.  Ch. ;  38  L .  J.,  C.  P.  95,  S.  C;  Vickers  v.  Hertz, 
2  Law  Rep.,  H.  L.  Sc.  113;  Johnson  v.  Credit  Lyonnais  Co.,  L.  R.,  3  C.  P.  D. 
32,  per  Ct.  of  App.;  47  L.  J.,  C.  P.  241,  S.  C. 

*  25  &  26  v.,  c.  59,  §  2,  Ir.,  enacts,  that  "the  occupier  of  any  house  or  pre- 
mises where  any  dog  was  kept,  or  permitted  to  live  or  remain,  at  the  time  of 
such  injury  complained  of,  shall  be  deemed  to  be  the  owner  of  such  dog,  unless 
the  contrary  be  proved."  See,  also,  28  &  29  V.,  c.  50,  I  7,  Ir.;  26  &.  27  V.,  c. 
100,  I  2,  Sc. ;  and  28  &  29  V.,  c.  60,  I  2. 

(3013) 


148  PRESU3IPTI0N  ARISING  FROJI  POSSESSION.  [PAET  I. 

tickets/  and  also  in  most  of  the  statutes  which  authorise  the 
compulsory  sale  of  lands  for  particular  purposes;  as,  for  instance, 
in  the  Lands*  Clauses  Consolidation  Act."  At  common  law,  too, 
it  may  be  illustrated  by  a  great  variety  of  cases.  Thus,  in  an 
action  on  a  policy  of  insurance  effected  on  a  ship  and  her  cargo,  the 
plaintiff  may  rely  on  the  mere  fact  of  possession,  without  the  aid  of 
any  documentary  proof  or  title  deeds,  unless  such  further  proof  be 
rendered  necessary  by  the  opposite  party  adducing  some  contrary 
evidence.^  This  rule  applies  both  to  real  and  personal  property, 
and,  in  the  former  case,  raises  a  presumption  of  a  seisin  in  fee.^  In 
actions  of  trespass  to  real  property,  the  presumption  arising  from 
the  simple  fact  of  possession  amounts,  as  against  a  mere  wrong- 
doer, to  conclusive  evidence;^  and  if  an  action  be  brought  for  an 
injury  done  to  the  reversion  of  an  estate,  proof  of  the  receipt  of 
renf^  by  the  plaintiff  will,  unless  the  sum  annually  received  be  so 
small  as  to  raise  a  presumption  that  it  is  a  mere  quit  rent,'  be 
sufficient  evidence  of  his  title  to  the  reversion  as  against  all  the 
world,  except  the  real  owner  and  persons  claiming  under  him. ^  So, 
also,  in  actions  against  wrong-doers  for  injuries  to  personal  chattels, 
proof  of  possession,  when  coupled  with  evidence  that  the  plaintiff 
has  some  special  property  in  such  chattels,  has  long  been  held  to 
constitute  a  complete  title.^  Therefore,  an  undischarged  bankrupt 
may  probably  still,  as  under  the  old  law,*"  sue  in  trover  a  wi'ong- 

1  35  &  36  v.,  c.  93,  §  25.  '^  8  &  9  V.,  c.  18,  §  79. 

»  Kobertson  v.  French,  4  East,  130,  137;  Sutton  v.  Buck,  2  Taunt.  302.  So, 
proof  that  the  plaintiff  ha.s  ordered  and  paid  for  stores  for  the  ship,  is  prima 
facie  evidence  of  his  ownership,  so  as  to  enable  him  to  sustain  an  action  on  a 
policy  against  the  underwriter;  Thomas  v.  Foyle,  5  Esp.  88,  per  Ld.  Ellen- 
borough. 

*  Doe  V.  Coulthred,  7  A.  &  E.  239,  per  Ld.  Denman;  Jayne  v.  Price,  5  Taunt. 
326;  Doe  v.  Penfold,  8  C.  &  P.  537,  per  Patteson,  J.  See  Metters  v.  Brown,  32 
L.  .T.,  Ex.  138;  1  H.  &  C.  686,  S.  C;  as  to  how  this  presumption  can  be  rebutted. 

*  Elliott  V.  Kemp,  7  M.  &  W.  312,  per  Parke,  B. 

^  See,  also,  23  &  24  V.,  c.  154,  ?  24,  Ir.,  which  makes  the  receipt  of  rent, 
under  certain  circumstances,  for  a  certain  period,  prima  facie  evidence  of  a 
landlord's  derivative  title. 

■'  Doe  u.  Johnson,  Gow,  R.  173,  per  Holroyd,  J.,  recognised  in  Reynolds  v. 
Reynolds,  12  Ir.  Eq.  R.  172,  181. 

8  Daintry  v.  Brocklehurst,  3  Ex.  R.  207. 

9  Elliott  V.  Kemp,  7  M.  &  W.  312,  per  Parke,  B. 

1"  Webb  V.  Fox,  7  T.  R.  391 ;  Diayton  v.  Dale,  2  B.  &  C.  293;  3  D.  &  R.  534, 
S.  C. ;  Fyson  v.  Chambers,  9  M.  &  V/.  460. 

(3014) 


CHAP  v.]  PRESUMPTION  ARISING  FROM  POSSESSION.  149 

doer  who  has  taken  goods  out  of  his  custody  ;  for  although  the 
trustee  may  take  possession  of  his  after  acquired  property,  yet  if 
he  allows  the  bankrupt  to  treat  such  property  as  his  own,  no  third 
person  can  cover  his  own  default  by  setting  up  a  title,  upon  which 
the  trustee  himself  does  not  think  fit  to  insist.  So,  possession  of 
a  ship  under  a  transfer  from  the  rightful  owner,  which  is  void  for 
non-compJiance  with  the  register  Acts,  constitutes  a  sufficient  title 
in  the  plaintiff  to  support  an  action  of  trover  against  a  stranger,  for 
converting  a  part  of  the  ship  which  was  wrecked.'  So,  even  a 
general  bailment  will  suffice,  without  being  made  for  any  special 
purpose,  but  only  for  the  benefit  of  the  rightful  owner."  In  Ireland, 
too,  a  mere  naked  possession  will  entitle  a  party  to  maintain  trover 
as  against  a  wrong-doer,^  and  the  same  doctrine  has  been  acted 
upon  in  the  English  Courts.* 

§  124.  Many  cases  also  show,  that  an  apparent  stranger  to  a  ^  io9 
document  may  be  so  far  connected  with  it  by  the  fact  of  producing 
it,  as  to  make  it  ample  prima  facie  evidence  for  a  jury  in  support 
of  his  claim.*  Thus,  the  production  by  a  plaintiff  of  an  I  O  U 
signed  by  the  defendant,  though  not  addressed  to  any  one  by  name, 
is,  in  general,*^  abundant  evidence,  not  indeed  of  money  lent,  of 
which  it  furnishes  no  proof  whatever,^  but  of  an  account  stated 
between  the  parties.*  So,  if  a  letter  be  given  in  evidence  with  the 
direction  torn  off,  the  jury  will  do  well  to  presume,  prima  facie, 
ihat  it  was  addressed  to  the  party  who  produces  it.* 

1  Sutton  V.  Buck,  2  Taunt.  302. 

2  Per  Chambre,  J.,  id.  309. 

^  Fitzpatrick  v.  Dunphy,  1  Ir.  Law  Rep.,  N.  S.  366,  per  Ex. 

*  Jeffries  v.  Gt.  West.  Eail.  Co.,  5  E.  &  B.  802.  This  case  resolves  a  doubt 
raised  by  Parke,  B.,  in  Fyson  v.  Chambers,  9  M.  &  W.  467.  See,  also,  Armory 
V.  Delamirie,  1  Str.  503  ;  1  Smith,  L.  C.  301,  S.  C. ;  Sutton  v.  Buck,  2  Taunt. 
309,  per  Lawrence,  J. 

^  Fesenmayer  v.  Adcock,  16  M.  &  W.  449,  per  Pollock,  C.  B. 

*  But  it  will  not  furnish  evidence  of  an  account  stated,  if  the  defendant 
can  show  that,  in  fact,  it  was  not  given  in  acknowledgment  of  a  debt  due. 
Lemere  v.  Elliott,  30  L.  J.,  Ex.  350 ;  6  H.  &  N.  656,  S.  C. 

'  Fesenmayer  v.  Adcock,  16  M.  &  W.  449,  questioning  Douglas  v.  Holme, 
12  A.  &  E.  641. 

«  Id.;  Curtis  v.  Rickards,  1  M.  &  Gr.  46  ;  Croker  v.  Walsh,  2  Ir.  Law  R., 
N.  S.  552.     See  Wilson  v.  Wilson,  14  Com.  B.  616,  626. 

»  Curtis  V.  Rickards,  1  M.  &  Gr.  47,  per  Tindal,  C.  J. 

(3015) 


150  PKESUMPTION  ARISING  FROJI  POSSESSION.  [pART  I. 

§  125.  la  actions  for  the  recovery  of  land,  though  it  is  an  §  no 
inflexible  rule  that  the  plaintiff  raiist  solely  rely  on  the  strength  of 
his  own  legal  title,  yet  proof  of  a  prior  possession,  however  short, 
will  be  prima  facie  evidence  of  title  as  against  a  wroug-doer.'  Thus, 
where  a  party  received  a  key  of  a  room  from  the  lessor  of  the 
plaintiff,  and  held  the  premises  for  about  a  year,  when  the  defendant 
broke  in  at  night  and  took  forcible  possession,  Lord  Tenterden  held 
that  the  plaintiff'  was  not  entitled  to  recover.^  In  another  case  of  eject- 
ment, where  the  lessor  of  the  plaintiff  proved  that  he  had  formerly 
held  the  premises  for  twenty -three  years,  and  during  that  time  had 
received  and  increased  the  rent,  the  court  held  that  the  defendant 
could  not  rebut  the  presumption  of  a  seisin  in  fee  arising  from  these 
unequivocal  acts  of  ownership,  by  showing  that  he  himself  had  sub- 
sequently been  in  possession  for  a  period  less  than  twenty  years, 
for  presumption  being  thus  met  by  presumption,  the  defendant  was 
bound  to  establish,  if  he  could,  a  title  of  a  higher  description.^  In 
some  cases  it  will  be  presumed,  that  the  fee-simple  of  the  land 
carries  with  it  the  right  to  the  minerals  ;*  but  this  presumption  is 
not  universal,  since  in  mining  districts  the  right  to  the  minerals 
and  the  fee-simple  of  the  soil  are  frequently  in  diff'erent  persons; 
and  it  may  at  all  times  be  rebutted  by  showing,  either  an  absence 
of  enjoyment  of  the  minerals  by  the  owner  of  the  soil,  or  an  actual 
user  of  the  minerals  by  a  stranger.^  The  law  also  presumes  prima 
facie,  that  the  tenant  of  the  surface  is  tenant  of  the  siibjacent  strata, 
but  this  presumption,  like  the  last,  is  liable  to  be  defeated,  by  proof 
that  the  surface  and  the  subsoil  have  been  dissevered  in  title,  and 
have  become  separate  tenements.^ 


^  Asher  v.  ^Hiitelock,  35  L.  J.,  Q.  B.  17 ;  1  Law  Eep.,  Q.  B.  1,  S.  C. 

2  Doe  V  Dyeball,  3  C.  «&  P.  610  ;  M.  &  M.  346,  S.  C.  See  Doe  v.  Barnard, 
13  Q.  B.  945. 

3  Doe  V.  Cooke,  7  Bing.  346  ;  5  M.  &  P.  181,  S.  C.  See,  also,  Breast  v. 
Lever,  7  M.  «&  W.  593. 

*  But  see  the  Transfer  of  Land  Act,  1862,  25  &  26  V.,  c.  53,  |  9,  and  the 
Land  Transfer  Act,  1875,  38  &  39  V.,  c.  87,  I  18,  both  of  which  statutes,  for 
purposes  of  registration  of  title,  recognise  an  opposite  presumption,  unless,  in 
the  description  of  the  land,  mines  or  minerals  be  expressly  mentioned. 

^  Kowe  V.  Grenfel,  Ry.  &  M.  396,  per  Ld.  Tenterden;  Rowe  v.  Brenton, 
8  B.  &  C.  737 ;  Hodgkinson  v.  Fletcher,  3  Doug.  31. 

«  Keyse  v.  Powell,  2  E.  &  B.  132 ;  Smith  v.  Lloyd,  9  Ex.  562,  574,  per 
Parke,  B. 

(3016) 


CHAP,  v.]  LONG  UNINTERRUPTED  POSSESSION.  151 

§  126,  The  presumption  of  title  arising  from  possession  will  be  §  in 
obviously  much  strengthened  by  proof  of  uninterrupted  enjoyment 
for  a  considerable  time.  In  many  cases,  as  before  observed/  the 
legislature  has  fixed  what  periods  of  undisturbed  possession  will 
suiSce  to  confer  an  absolute  title;  and  in  these  cases,  when  the 
party  by  his  pleading  shows  that  he  relies  upon  the  statutory  limi- 
tation, no  lapse  of  time  but  that  of  the  full  period  fixed  by  Act  of 
Parliament  will  justify  a  presumption  in  support  of  the  claim. ^ 
But  if,  instead  of  depending  upon  the  statute-law,  the  party  rests 
his  case,  as  he  may  do,  upon  common-law  presumption,  or  a  lost 
grant,  the  fact  of  enjoyment  for  a  less  period  than  the  statutory 
number  of  years,  when  coupled  with  other  circumstances,  will 
warrant  a  jury  in  finding  a  verdict  in  his  favour.'* 

§  127.  In  other  cases,  to  which  the  statutes  of  limitation  do  not  I  112 
extend,  the  same  principles  of  presumptive  evidence  apply,  though 
they  are  necessarily  open  to  a  more  vague  interpretation.  For  in- 
stance, though  a  plaintiflP  seeking  to.  recover  land  is  bound,  as  we 
have  just  seen,^  to  establish  his  own  title,  he  will  not  be  required 
to  prove  strictly  every  successive  link  in  it,  provided  that  the 
property  has  been  long  in  his  possession.  When,  therefore,  a  mat) 
claimed  under  a  feoffment,  and  proved  that  he  had  had  uninterrupted 
enjoyment  of  the  premises  for  twenty  years,  the  court  and  jury 
presumed,  in  his  favour,  that  the  necessary  formalities  of  the  old 
livery  of  seisin  had  been  complied  with.^  But  presumptions  of  this 
nature  will  not  now  be  raised,  where  the  land  has  been  held  for  a 
less  period  than  twelve  years,*"  nor  will  they,  where  the  acts  of  the 
parties,  or  the  other  facts  in  the  case,  lead  to  a  different  inference.^ 


^  Ante,  §  74. 

2  See  2  &  3  W.  4,  c.  71,  §  G;  2  &  3  W.  4,  c.  100,  ?  8,  Eldridge  v.  Knott, 
1  Cowp.  214;  Lowe  v.  Carpenter,  6  Ex.  R.  825. 

•^  See  Bright  v.  Walker,  1  C.  M.  &  R.  222,  223,  per  Parke,  B. ;  LcI.  Stam- 
ford r.  Dunbar,  13  M.  &  W.  822,  827;  Lowe  v.  Carpenter,  6  Ex.  R.  830,  831, 
per  Parke,  B. ;  Hanmer  v.  Chance,  4  De  Gex,  J.  &  S.  626,  631,  per  Ld.  West- 
bury.  *  Ante,  I  125. 

^  Rees  V.  Lloyd,  Wightw.  123;  Doe  v.  Cleveland,  9  B.  &  C.  864;  4  M.  & 
R.  666,  S.  C,  Doe  v.  Davies,  2  M.  &  W.  503;  Doe  v.  Gardiner,  12  Com.  B. 
319. 

*  37  &  38  v.,  c.  57,  I  12;  and  see  cases  in  last  note. 

'  Doe  V.  Gardiner,  12  Com.  B.  319. 

(3017) 


152  REGULARITY  PRESUMED  FROM  LAPSE  OF  TIME.  [PART  I. 

Again,  without  any  direct  proof  of  the  passing  of  a  bye-law,  or  the 
loss  of  it,  the  court  will  infer  its  existence  from  a  usage  of  long 
standing;  for  where  rights  have  been  exercised  in  a  particular 
manner  for  many  years  without  interruption,  it  is  only  reasonable 
to  presume  that  they  have  had  a  legal  origin.' 


§  128.  The  maxim,  "ex  diuturnitatetemporis  omnia  prsesumuntur  «  jj3 
rite  et  solemniter  esse  acta;"  is  of  great  value,  and  has  been  applied 
to  a  variety  of  cases.  Under  certain  circumstances  tbis  presump- 
tion assumes  a  conclusive  character.  One  instance  has  already 
been  furnished"  in  the  case  of  ancient  documents,  the  due  execu- 
tion of  which  will  be  presumed  on  their  mere  production.  The 
American  courts  recognise  other  applications  of  the  rule.  Thus, 
after^  the  lapse  of  twenty  years,  they  conclusively  presume,  in 
favour  of  every  judicial  tribunal  which  has  acted  within  its  juris- 
diction, that  all  persons  interested  in  its  proceedings  have  had  due 
notice.*  So,  it  has  been  held  in  the  United  States,  that  where  an 
authority  is  given  by  law  to  executors,  guardians,  and  other  officers, 
to  make  sales  of  lands  upon  being  duly  licensed  by  the  courts,  and 
they  are  required  to  advertise  the  sales  in  a  particular  manner, 
and  to  observe  other  formalities,  the  lapse  of  sufficient  time,  which 
in  most  cases  is  fixed  at  thirty  years,  raises  a  conclusive  presump- 
tion that  all  the  legal  formalities  of  the  sale  were  observed.^  The 
licence  to  sell,  and  the  official  character  of  the  vendor,  being  prov- 
able by  record  or  judicial  registration,  must  in  general  be  so  proved; 
and  the  deed  must  also  be  proved  in  the  usual  manner;  it  is  only 
the  intermediate  proceedings  that  are  presumed.  Probatis  extremis 
prcesumuntur  media. 


^  R.  V.  Powell,  3  E.   &  B.  377;   May.  of  Hull  v.   Horner,  1  Cowp.  110,  per 
Ld.  Mansfield.     See  Johnson  v.  Barnes,  8  Law  Rep.,  C.  P.  527,  per  Ex.  Ch. 
2  Ante,  ^  87. 

*  Gr.  Ev.  IH9  &  20,  in  great  part. 

*  Brown  v.  Wood,  17  JNIass.  68. 

'  See  Pejep.scot  Prop's  v.  Ransom,  14  Mass.  145;  Blossom  v.  Cannon,  id. 
177;  Colman  v.  Anderson,  10  Mass.  105;  Williams  v.  Eyton,  27  L.  J.,  Ex. 
176;  2  H.  &  N.  771,  S.  C;  4  H.  &  N.  357,  S.  C,  in  Ex.  Ch.  In  some  cases, 
an  interval  of  twenty  years  has  been  held  sufficient.  See  Society,  &c.,  v. 
Wheeler,  1  New  Hamp.  R.  310. 

(3018) 


CHAP,  v.]        REGULARITY  PRESUMED  FROM  LAPSE  OF  TIME.  153 

§  129.  In  the  Act  which  was  passed  in  1874,  to  facilitate  the 
transfer  of  land,'  the  legislature  has  incorporated  the  maxim  in 
question  in  one  of  the  leading  rules,  which  are  henceforth  to  regu- 
late the  practice  of  conveyancers  and  the  rights  of  vendors  and  pur- 
chasers. For  §  2  enacts,  in  substance,  that  in  the  completion  of 
any  contract  of  sale  of  land,  and  subject  to  any  stipulation  to  the 
contrary  in  the  contract,  all  recitals,  statements,  and  descriptions 
of  facts,  matters  and  parties,  contained  in  deeds,  instruments.  Acts 
of  Parliament  or  statutory  declarations,  twenty  years  old  at  the 
date  of  the  Contract,  shall,- — unless  proved  to  be  inaccurate, — be 
sufficient  evidence  of  the  truth  of  the  same.^ 


§  130.  One  of  the  most  important  applications  of  the  presump-  ^  114 
tion  under  review,  is  to  cases  where  the  rights  of  the  Crown  are 
concerned.  Here,'' — though  lapse  of  time  does  not  of  itself  furnish 
a  conclusive  legal  bar  to  the  title  of  the  Sovereign,  agreeably  to  the 
mischievous  maxim  nullum  tempus  occurritregi, — yet,  if  the  adverse 
claim  could  have  had  a  legal  commencement,  juries  are  instructed  "" 
or  advised  to  presume  such  commencement,  after  many  years  of 
uninterrupted  possession.  Accordingly,  royal  grants,  charters,  and 
even  Acts  of  Parliament,  have  not  infrequently  been  thus  found  by 
the  jury,  after  long  continued  peaceable  enjoyment,  accompanied 
by  the  usual  acts  of  ownership.*  So,  the  long  enjoyment  of  port 
duties,  tolls,  customary  dues,  fees,  or  the  like  will,  if  the  nature  of 
the  case  admits  of  it,^  be  held  to  warrant  the  presumption    of  any 

1  37  &  38  v.,  c.  78,  ?  2  ;  Bolton  v.  London  School  Board,  L.  R.,  7  Ch.  D. 
768  ;  47  L.  J.,  Ch.  461,  S.  C. 

2  See  Re  Marsh  &  Ld.  Granville,  L.  R.,  24  Ch.  D.  11,  per  Fry,  J. 
^  Gr.  Ev.  I  45,  In  part,  as  to  nine  lines. 

*  R.  v:  Brown,  cited  1  Cowp.  110;  May.  of  Hull  v.  Horner,  id.  102;  Eld- 
ridge  V.  Knott,  id.  215  ;  Lopez  v.  Andrew,  3  M.  &  R.  329  a  ;  Delurue  v. 
Church,  2  L.  J.,  Ch.  113  ;  O'Neill  v.  Allen,  9  Ir.  Law  R.,  N.  S.  132,  141,  per 
Pigot,  C.  B.  ;  Doe  d.  Devine  v.  Wilson,  10  Moo.,  P.  C.  L.  527  ;  Little  v.  Wing- 
field,  11  Ir.  Law  R.,  N.  S.  63  ;  Roe  v.  Ireland,  11  East,  280  ;  Goodtitle  v.  Bald-  . 
win,  id.  488  ;  Att.-Gen.  v.  Ewelme  Hospital,  17  Beav.  366  ;  Mather  v.  Trinity 
Church,  3  Serg.  &  R.  509. 

*  See  Gann  v.  Free  Fishers  of  Wliitstable,  20  Com.  B.,  N.  S.  1,  in  Dom. 
Proc.  ;  11  H.  of  L.  Cas.  192,  S.  C.  ;  overruling  S.  C.  in  C.  P.  and  Ex.  Ch., 
Free  Fishers  of  Wliitstable  v.  Gann,  and  Gann  v.  Johnson,  11  Com.  B.,  N.  S. 
387,  and  13  Com.  B.,  N.  S.  859;  Bryant  v.  Foot,  2  Law  Rep.,  Q.  B.  161  ;  7 
B.  &  S.   725,   S.   C;  and  in   Ex.   Ch.,   S.   C.  3  Law  Rep.,  Q.  B.  497;  37  L.  J., 

(3019) 


154  TITLE  PRESUMED  FROM  LONG  ENJOYMENT.  [PABT  I. 

fact  necessary  to  make  them  legal  : '  and  if  distinct  evidence  of  any- 
such  payments  be  given  as  far  back  as  living  memory  goes,  the 
jury,  unless  evidence  to  the  contrary  be  shown,  will  be  quite  justi- 
fied in  presuming,  or,  rather,  will  be  directed  to  presume,  that  such 
payments  were  immemorial,  or  at  least  were  referable  to  a  legal 
origin.^  So,  a  series  of  acts  of  ownership  exercised  on  the  seashore 
by  the  adjoining  pi'oprietor,  will  afford  abundant  evidence  for  a  jury 
to  presume  that  the  Crown  formerly  granted  the  soil  to  one  of  his 
ancestors;^  and  a  similar  inference  may  be  drawn  from  the  produc- 
tion of  a  royal  grant  conveying  the  right  of  wreck/ 


§  131.  Again,  notwithstanding  the  rule  which  provides  that,  in  ^  114 
order  to  constitute  a  valid  dedication  to  the  public  of  a  highway, 
the  owner  of  the  soil  must  intend  to  dedicate,^  the  uninterrupted 
user  of  a  road  by  the  public  for  forty  or  fifty  years  has  been  held 
amply  sufficient  to  justify  a  presumption  in  favour  of  the  original 
animus  dedicandi,  although  there  was  ground  for  supposing  that  the 
soil  of  the  highway  was  vested  in  the  Crown.''  Even  a  qualified  or 
partial  dedication  of  a  way  may  be  presumed  in  like  manner  from 
continuous  use  ;  and  in  a  case  in  which,  as  far  back  as  living 
memory  went,  the  public  had  enjoyed  a  right  of  way  across  an 
arable  field,  and  the  owner  had  ploughed  up  the  field  including  the 

Q.  B.  217,  and  9  B.  &  S.  444;  Lawrence  v.  Hitch,  3  Law  Rep.,  Q.  B.  521,  in 
Ex.  Ch.;  37  L.  J.,  Q.  B.  209;  and  9  B.  &  S.  467,  S.  C.  See,  also,  Mills  v. 
May.  of  Colchester,  36  L.  J.,  C.  P.  216;  2  Law  Rep.,  C.  P.  476,  S.  C. ;  and 
Free  Fishers  of  Whitstable  r.  Foreman,  2  Law  Rep.,  C.  P.  688,  716,  717;  37 
L.  J.,  C.  P.  305,  S.  C.  in  Ex.  Ch.;  and  S.  C.  in  Dom.  Proc.  nom.  Foreman  v. 
Free  Fishers  of  Whitstable,  38  L.  J.,  C.  P.  345. 

^  May.  of  Exeter  v.  Warren,  5  Q.  B.  801,  per  Ld.  Denman. 

2  Malcomson  v.  O'Dea,  10  H.  of  L.  Cas.  593;  Mills  v.  May.  of  Colchester,  36 
L.  J.,  C.  P.  213;  D.  of  Beaufort  v.  Smith,  19  L.  J.,  Ex.  106;  per  Parke,  B. ;  4 
Ex.  R.  471,  S.  C;  Pelham  v.  Pickersgill,  1  T.  R.  667,  per  Ashhurst,  J.  ;  Shep- 
hard  v.  Payne,  3  New  R.  580,  per  Ex.  Ch. 

*  Calmady  v.  Rowe,  6  Com.  B.  861 ;  D.  of  Beaufort  v.  May.  of  Swansea,  3 
Ex.  R.  413;  Le  Strange  v.  Rowe,  4  Fost.  &  Fin.  1048,  per  Erie,  C.  J.;  Healy 
V.  Thorne,  I.  R.,  4  C.  L.  495.     See  ante,  ^  119. 

*  Hale  de  Jure  Mar.  25,  recognised  in  Calmady  v.  Rowe,  6  Com.  B.  891. 
5  Poole  V.  Huskinson,  11  M.  &  W.  827. 

«  R.  V.  East  Mark,  11  Q.  B.  877;  R.  v.  Petrie,  24  L.  J.,  Q.  B.  167;  4  E.  &  B. 
737,  S.  C;  Turner  v.  Walsh,  L.  R.,  6  App.  Cas.  636.  See  Greenwich  Board  of 
Works  V.  Maudslay  5  Law  Rep.,  Q.  B.  397;  39  L.  J.,  Q.  B.  205,  S.  C;  Powers 
V.  Bathurst,  49  L.  J.,  Ch.  294,  per  Fry,  J. 

(3020) 


CHAP.  V.  ]  TITLE  PRESUMED  FROM  LONG  ENJOYMENT.  155 

path,  it  was  presumed,  first,  that  the  original  dedication  of  the  way 
was  subject  to  the  right  of  ploughing  it  up  in  due  course  of  farm- 
ing,' and  next,  that  although  it  had  for  a  time  become  impassable 
in  consequence  of  such  ploughing,  the  public  had  no  right  of 
deviating  from  it.^  So,^  after  evidence  of  nearly  forty  years'  posses- 
sion of  a  tract  of  land,  and  proof  of  a  prior  order  of  council  for  its 
survey,  and  of  an  actual  survey,  an  American  jury  has  been  in- 
structed to  presume  that  a  patent  had  been  duly  issued.*  In 
regard,  however,  to  Crown  and  public  grants,  a  longer  period  is 
generally  deemed  necessary,  to  justify  this  presumption,  than  in 
the  case  of  grants  from  private  persons. 


§  132.  The  principles  upon  which,  in  cases  of  incorporeal  here-  ^  114a 
ditaments,  grants  may  be  presumed,  as  between  private  persons, 
from  mere  uninterrupted  user  and  enjoyment,  have  been  much 
discussed  in  Ireland;  and  it  seems  now  to  be  finally  settled,  first, 
that  juries  in  such  cases  should  not  be  required  to  find  as  a  fact  that 
a  deed  of  grant  has  been  actually  executed,  but  that,  without 
believing  any  grant  to  have  been  made,  they  may  often,  under  the 
instruction  of  the  court,  presume  its  existence  for  the  simple  pur- 
pose of  quieting  possession,^ — and  next,  that  this  presumption  may 
be  sometimes  raided  even  against  a  reversioner,  provided  it  can  be 
either  directly  proved,  or  reasonably  inferred,  that  he  has  had  full 
knowledge    of    his    opponent's   actual  enjoyment  of  the  right  in 


1  Mercer  v.  Woodgate,  10  B.  &  S.  833;  39  L.  J.,  M.  C.  21,  S.  C. ;  Arnold 
V.  Blaker,  40  L.  J.,  Q.  B.  185,  per  Ex.  Ch. 

"^  Arnold  v.  Holbrook,  8  Law  Rep.,  Q.  B.  9G;  42  L.  J.,  Q.  B.  81,  S.  C. 
^  Gr.  Ev.  §  45,  in  part. 

*  Jackson  v.  M'Call,  10  Johns.  377:  "Si  probet  possessionem  excedentem 
memoriam  hominum,  liabet  vim  tituli  et  privilegii,  etiam  a  Principe.  Et  ha^c 
est  diiferentia  inter  possessionem  xxx  vel  xl  annorum,  et  non  memorabilis- 
temporis;  quia  j^er  illam  acquiritur  non  directum,  sed  utile  dominium;  per 
istam  autem  directum."     1  Masc.  de  Prob.,  p.  239;  concl.  199,  n.  11,  12. 

*  Deeble  r.  Linehan,  12  Ir.  Law  R.,  N.  S.  1,  per  Ex.  Ch.,  following  the 
dicta  of  Ld.  Mansfield  in  Eldridge  v.  Knott,  1  Cowp.  214,  and  of  Ld,  Wens- 
leydale  in  Bright  v.  Walker,  1  C.  M.  &  R.  217,  and  in  Magdalen  Coll.  v. 
Att.-Gen.,  3  .Tur.,  N.  S.  675,  cor.  Dom.  Proc,  and  overruling  a  dictum  of 
Bayley,  B.,  in  Day  v.  Williams,  2  C.  &  J.  461;  Little  v.  Wingfield,  11  Ir. 
Law  R.,  N.  S.  Q-i,  per  Ex.  Ch. 

(3021) 


15G  PRESUMPTION  OF  CONVEYANCE  OF  LEGAL  TITLE.        [PAKT  I. 

question,  and  has  tacitly  assented  thereto.'  But  still  the  presump- 
tion of  a  grant  can  only  arise,  when  the  person  against  whom  the 
right  is  claimed  might  have  interrupted  or  prevented  the  user 
relied  on;"  and,  therefore,  the  grant  of  a  right  to  the  uninterrupted 
passage  of  air  to  a  windmill  from  over  the  soil  of  a  neighbour',  can- 
not be  presumed  from  an  uninterrupted  use  of  the  mill  for  forty 
years.* 

§  133.*  Juries  are  also  sometimes  advised,  in  more  or  less  foi;-  ^  115 
cible  terms,  to  presume  conveyances  of  corporeal  hereditaments 
between  private  individuals,  in  favour  of  the  party  who  has  proved 
a  right  to  the  beneficial  ownership,  and  whose  undisturbed  posses- 
sion, being  consistent  with  the  existence  of  the  conveyance  required 
to  be  presumed,  affords  reasonable  ground  for  belief  that  the  legal 
title  has  in  fact  been  conveyed.^  This  presumption  is  made,  in 
order  to  prevent  an  apparently  just  title  from  being  defeated  by 
mere  formal  matter;"^  but,  to  adopt  the  language  of  Chief  Justice 
Tindal,'  "no  case  can  be  put  in  which  any  presumption  has  been 
made,  except  when  a  title  has  been  shown  by  the  party  who  calls 
for  the  presumption,  good  in  substance,  but  wanting  some  collateral 
matter  necessary  to  make  it  complete  in  point  of  form.  In  such 
case,  where  the  possession  is  shown  to  have  been  consistent  with 
the  existence  of  the  fact  directed  to  be  presumed,  and  in  such  case 
only,  has  it  ever  been  allowed." 


§  134.  Subject  to  these  observations,  the  presumption  in  favour    §  116 
of  a  conveyance  will,  in  general,  be  allowed  to  prevail,  whenever  it 

^  Deeble  v.   Linehan,  12  Ir.  Law  R.,  N.  S.   1,  per   Ex.   Ch. ;  Winterbottom 
V.  Ld.  Derby,  2  Law  Rep.,  Ex.  316. 

^  Chasemore  v.  Richards,  7  H.  of   L.  Cas.  349. 

3  Webb  V.    Bird,    13   Com.   B.,  N.  S.  841,  per   Ex.  Ch. ;  Brj-ant  v.  Lefever, 
48  L.  J.,  C.  P.  380,  per  Ct.  of  App.;  L.  R.,  4  C.  P.  D.  172,  S.  C. 

*  Gr.  Ev.  H6;  in  part. 

s  Doe  V.  Cooke,  6   Bing.  180,  per   Tindal,  C.  J.     See   Doe  v.  Millett,   11   Q. 
B.  1036,  and  cases  there  cited. 

6  Doe  V.  Cooke,  6  Bing.  180,  per  Tindal,  C.  J. ;  Doe  v.  Sybourn,  7  T.  R.  3, 
per  Ld.  Kenyon. 

^  Doe  V.  Cooke,  6  Bing.  179.     But  see   Little  v.  Wingfield,  11    Jr.  Law  R., 
N.  S.  63,  73,  103,  where  the  passage  cited  above  is  called  in  question  as  I 

laying  down  the  law  too  narrowly. 

(3022) 


CHAP  v.]      PRESUMPTION  OF  CONVEYANCE  OF  LEGAL  TITLE.  157 

was  the  declared  duty  of  trustees  to  convey  to  the  beneficial  owner 
at  a  specified  time,  as  upon  his  attainment  of  the  age  of  majority, 
or  on  the  death  of  a  cestui  que  vie,  or  after  the  payment  of  debts, 
legacies,  portions,  or  the  like  ;  for  in  such  cases  it  is  reasonable  to 
presume  that  the  trustees  have  performed  their  duty,  and  done  what 
a  court  of  equity  would  compel  them  to  do.'  A  like  presumption 
will  probably  arise  where  the  duty  to  convey,  though  not  expressly 
declared,  may  constructively  be  gathered  from  the  object  of  the 
trust ;  as,  for  instance,  where  an  estate  is  vested  in  trustees  for  a 
temporary  purpose,  which  has  been  attained,  and  no  further  in- 
tention is  declared,  or  can  reasonably  be  inferred,  requiring  the 
legal  estate  to  remain  outstanding.^ 

§  135.  It  has  been  asserted,  and  probably  with  correctness,  that  g  117 
this  presumption  will  never  be  made  against  the  owner  of  the  in- 
heritance, with  the  single  exception  of  those  cases  where  he  has 
attempted  to  defeat  the  solemn  acts  of  himself,  or  of  those  through 
whom  he  claims.  Thus,  if  a  mortgagor  attempt  to  set  up  an  out- 
standing fee  as  against  a  mortgagee  for  years,  or  the  appointee  of  a 
devisee  in  fee  dispute  the  former  right  of  the  devisor  to  grant  a  lease 
of  the  premises  in  question,  on  the  ground  that  the  legal  estate  was, 
at  the  time  of  the  grant,  outstanding  in  a  trustee,  the  jury,  in  cases 
where  the  estoppel  is  not  pleaded,  may  still  presume  a  conveyance; 
for,  in  the  first  case,^  the  presumption  will  be  .made  in  favour  of  the 
honesty  of  the  mortgagor  at  the  time  of  the  mortgage,  though 
against  his  interest  at  the  time  of  the  trial ;  and  in  the  second,*  it 
will  equally  prevail,  in  order  to  give  validity  and  effect  to  the  grant 
of  the  devisor,  which  would  otherwise  be  void. 

1  England  v.  Slade,  4  T.  R.  682 ;  Doe  v.  Sybourn,  7  T.  R.  2  ;  2  Esp.  496, 
S.  C. ;  Wilson  v.  Allen,  1  Jac.  &  W.  611,  620,  per  Sir  T.  Plumer ;  Emery  v. 
Grocock,  6  Madd.  54,  per  Sir  J.  Leach.  In  England  v.  Slade,  a  conveyance 
from  the  trustees  was  presumed,  though  only  three  years  had  elapsed  from 
the  time  when  they  ought  to  have  conveyed. 

'^  Hillary  v.  Waller,  12  Ves.  239,  252,  per  Sir  W.  Grant ;  Doe  v.  Lloyd, 
Pea.  Ev.  App.  41,  per  Lawrence,  J.  These  cases  tend  to  establish  a  doctrine 
somewhat  more  favourable  to  presumption,  than  that  stated  in  the  text,  but 
they  have  not  met  with  general  approbation  from  the  profession.  See  2 
Sug.  V.  &  P.  196;  Math.,  Pres.  Ev.  215—217. 

3  Per  Abbott,  C.  J.,  in  Doe  v.  Hilder,  2  B.  &  A.  790  ;  Cottrell  v.  Hughes. 
15  Com.  B.  532. 

*  Bartlett  v.  Dowues,  3  B.  &  C.  616,  622,  per  Abbott,  C.  J. 

(3023) 


158  OUTSTANDING  TERMS'  ACT.  [PAKT  I. 

§  136.  Questions  respecting  this  bead  of  presumptions  frequently  g  113 
arose  in. former  times,  when  juries  used  to  be  called  upon  to  pre- 
sume the  sm-render  of  outstanding  satisfied  terms ;^  but  by  an 
excellent  Act,"  which  was  passed  in  the  year  1845,  these  questions 
were  finally  settled.  The  Act, — after  reciting  that  "the  assignment 
of  satisfied  terms  has  been  found  to  be  attended  with  great  difficulty, 
delay,  and  expense,  and  to  operate,  in  many  cases,  to  the  prejudice 
of  the  persons  justly  entitled  to  the  lands  to  which  they  relate," — 
enacts,  that  "  every  satisfied  term  of  years,  which  either  by  express 
declaration  or  by  construction  of  laiv,^  shall,  upon  the  31st  day  of 
December,  1845,  be  attendant  upon  the  inheritance  or  reversion  of 
any  land,  shall  on  that  day  absolutely  cease  and  determine  as  to 
the  land,  upon  the  inheritance  or  reversion  whereof  such  term  shall 
be  attendant  as  aforesaid,  except  that  every  such  term  of  years  which 
shall  be  so  attendant  as  aforesaid  by  express  declaration,  although 
thereby  made  to  cease  and  determine,  shall  afford  to  every  person 
the  same  protection  against  every  incumbrance,  charge,  estate, 
right,  action,  suit,  claim,  and  depiand,  as  it  would  have  afforded  to 
him  if  it  had  continued  to  subsist,  but  had  not  been  assigned  or 
dealt  with,  after  the  said  31st  day  of  December,  1845,  and  shall, 
for  the  purpose  of  such  protection,  be  considered  in  every  court  of 
law  and  of  equity  to  be  a  subsisting  term."  §  2  enacts,  that  "every 
term  of  years  now  subsisting  or  hereafter  to  be  created,  becoming 
satisfied  after  the  said  31st  of  December,  1845,  and  which  by 
express  declaration  or  construction  of  law,  shall  after  that  day  be- 
come attendant  upon  the  inheritance  or  reversion  of  any  lands, 
shall,  immediately  upon  the  same  becoming  so  attendant,  abso- 
lutely cease  and  determine  as  to  the  land,  upon  the  inheritance  or 
reversion  whereof  such  term  shall  become  attendant  as  aforesaid."* 


1  See  Garrard  v.  Tuck,  8  Com.  B.  231  ;  Doe  v.  Langdon,  12  Q.  B.  711. 

2  8  &  9  v.,  c.  112.  The  rough  draft  of  §§  1  &  2  of  this  Act  was  drawn 
by  Mr.  Davidson,  and  settled  by  Mr.  Christie.  The  subject  was  afterwards 
submitted  to  the  Law  Amend.  Society,  who  sanctioned  the  proposed  amend- 
ment ;  and  the  Bill  was  then  drawn  in  its  present  form  by  one  of  the  ablest 
members  of  that  body,  and  became  the  law  of  the  land  under  the  auspices 
of  Ld.  Brougham. 

"  See  Doe  v.  Price,  16  M.  &  W.  603 ;  Doe  v.  Moulsdale,  id.  689  ;  Doe  v. 
Jones,  13  Q.  B.  774  ;  Cottrell  v.  Hughes,  15  Com.  B.  532  ;  Plant  v.  Taylor, 
7  H.  &  N.  211. 

*  ^  3  enacts,  that  ' '  in  the   construction  and  for  the  purposes  of  this  Act, 

(3024) 


CHAP,  v.]  PKESUMPTION  OF  SURRENDER  OF  LEASE.  159 

§  137.  Notwithstaading  this  Act,  it  is  perfectly  clear  that  no  g  119 
presumption  can  be  allowed  in  favour  of  the  surrender  of  a  term 
which  is  still  unsatisfied,^  or  the  continuance  of  which  is  found  in 
a  special  verdict,  or  admitted  in  a  special  case;"  for,  whatever  in- 
dividual hardship  may  result  from  the  rule  of  law  that  a  plaintiff 
seeking  to  recover  land  must  rely  on  the  strength  of  his  own  legal 
title,  it  is  obviously  absurd  to  permit  any  inference  to  be  drawn, 
which  is  directly  opposed,  either  to  the  ascertained  fact,  or  to  all 
reasonable  belief.^ 


§  138.  A  jury  may  also,  under  certain  circumstances,  presume  ^  120 
the  surrender  of  a  lease  by  operation  of  law ;  for,  although  the  pro- 
duction by  the  lessor  of  a  cancelled  lease  will  not  warrant  the  pre- 
sumption of  such  a  surrender  as  will  satisfy  the  Statute  of  Frauds;* 
yet,  when  that  fact  was  coupled  with  proof  that  a  new  lease  had 
been  granted  to  another  party,  who,  like  the  former  lessee,  was  a 
mere  trustee  for  the  same  cestuis  que  trust,  and  it  farther  appeared, 
that  when  leases  were  renewed  from  time  to  time,  the  usage  was  to 
send  in  the  old  lease  to  be  cancelled  in  the  lessor's  office,  the  jury 
were  allowed  to  infer,  that  the  second  lease  was  granted  with  the 
assent  of  the  former  tenant,  and  then  the  court  held'^  that  this  was 
as  valid  a  surrender  of  the  first  interest  by  operation  of  law,  as  if  the 
former  tenancy  had  been  determined  in  writing.®  So,  the  unexplained 
payment  of  an  abated  rent  for  thirty  years  by  a  tenant  of  premises, 
which  were  shown  to  have  been  leased  to  another  party  for  an  un- 
expired term,  has  been  treated  in  Ireland  as  evidence  from  which  a 
jury  might  presume  the  surrender  of  the  original  lease,  and  the 


unless  there  be  something  in  the  subject  or  context  reijugnant  to  such  con- 
struction, the  word  '  lands  '  shall  extend  to  all  freehold  tenements  and  here- 
ditaments, -whether  corporeal  or  incorjioreal,  and  to  all  such  customary  land  as 
"will  pass  by  deed,  or  deed  and  admittance,  and  not  by  surrender,  or  any  undi- 
vided part  or  share  thereof  respectively." 

^  Doe  V.  Staple.  2  T.  R.  684,  where  the  lessor  of  the  plaintiff  was  heir-at-law, 
and  only  claimed  the  premises  subject  to  the  charge. 

2  Goodtitle  v.  Jones,  7  T.  R.  47;  Roe  v.  Reade,  8  id.  118. 

*  See  per  Bayley,  J.,  in  R.  v.  Upton  Gray,  10  B.  &  C.  812. 

*  Doe  V.  Thomas,  9  B.  &  C.  299;  4  M.  &  R.  218,  S.  C;  Roe  v.  Abp.  of  York, 
6  East,  86. 

*  See  Thomas  v.  Cook,  2  Stark.  R.  408;  2  B.  &  A.  119,  S.  C. 

«  Walker  v.  Richardson,  1  M.  &  W.  882.     See  post,  H  1009,  1010. 

(3025) 


160  UNINTERRUPTED  USER — STALE  DEMANDS.  [PART  I. 

creation  of  a  new  tenancy  from  year  to  year,  at  the  abated  rent,  in 
favour  of  the  present  occupier.' 


§  139.  The  same  principle  has  been  applied  to  a  variety  of  other  §  121 
matters.  For  example,  where  ejectment  was  brought  to  recover  a 
messuage,  which  had  been  demised  for  a  long  term  of  years, — the 
lease  containing  a  covenant  by  the  lessee  that  the  house  should  not 
be  used  as  a  shop  without  the  written  consent  of  the  lessor,  and  a 
proviso  for  re-entry  on  the  breach  of  such  covenant, — the  court  held 
that,  on  proof  of  the  uninterrupted  user  of  the  premises  as  a  beer- 
shop  for  twenty  years,  the  jury  ought  to  be  directed  to  presume 
that  a  license  in  writing  had  been  duly  given.^  So,  after  the  lapse 
of  sixty  years,  the  court,  in  the  absence  of  any  direct  evidence,  has 
presumed  that  executors,  who  wer3  proved  to  have  renounced,  had 
also  disclaimed  an  estate  in  a  chattel  real,  which  had  been  be- 
queathed to  them  by  the  testator.^  Indeed,  it  may  be  stated  as  a 
general  proposition,*  that  stale  demands  ought  always  to  be  regarded 
in  courts  of  justice  with  jealous  suspicion,^  and  that  long  acqui- 
escence in  any  adverse  claim  of  right  is  good  ground,  on  which  a 
jury  may  presume  that  the  claim  had  a  legal  commencement;^ 
since  it  is  contrary  to  general  experience  for  one  man  long  to  con- 
tinue to  pay  money  to  another,  or  to  perform  any  onerous  duty,  or 
to  submit  to  any  inconvenient  claim,  unless  in  pursuance  of  some 
contract,  or  other  legal  obligation' 


1  Lefroy  v.  Walsh,  1  Ir.  Law  R.,  N.  S.  311.  See,  also,  Terinent,  v.  Neil,  I. 
R.,  5  C.  L.  418,  per  Ex.  Cli. ;  In  re  Renew.  Leaseh.  Conv.  Act,  Ex  parte  Ray- 
mond, I.  R.  8  Eq.  231. 

"  Gibson  v.  Doey,  27  L.  J.,  Ex.  37;  S.  C.  nom.  Gibson  v.  Doeg,  2  H.  &  N. 
615. 

'  M'Kenna  v.  Eager,  I.  R.,  9  C.  L.  79. 

*  Gr.  Ev.  §  47,  in  great  part. 

^  Sibbering  v.  Ld.  Balcarras,  3  De  Gex  &  Sm.  735.  See  H.,  falsely  called  C. 
V.  C,  31  L.  J.,  Pr.  &  Mat.  103;  T.  v.  D.,  falsely  called  D.,  1  Law  Rep.,  P.  & 
D.  127.  So,  the  non-user  of  a  patent  for  a  series  of  years  raises  a  strong  pre- 
sumption of  its  practical  inutility;  Re  Allan's  Patent,  1  Law  Rep.,  P.  C.  507; 
4  Moo.  P.  C,  N.  S.  413,  S.  C;  Re  Bakewell's  Patent,  15  Moo.  P.  C.  385;  Re 
Hughes'  Patent,  48  L.  J.,  P.  C.  20. 

«  See  Re  Birch,  17  Beav.  358. 

'  See  Castleden  v.  Castleden,  9  H.  of  L.  Cas.  186;  4  Macq.  Sc.  Cas.  H.  of  L. 
159,  S.  C;  Ogilvie  c.  Currie,  37  L.  J.,  Ch.  541,  per  Ld.  Cairns,  Ch. 

(3026) 


^''^^^2^'^;^Ca,,U^^^2^^^^^^<^ — 


CHAP,  v.]  RECENT  POSSESSION  OF  STOLEN  PROPERTY,  161 

§  140.  The  possession  of  stolen  property  recently  after  the  com-  g  122 
mission  of  a  theft,  is  prima  facie  evidence  that  the  possessor  was 
either  the  thief,  or  the  receiver,  according  to  the  other  circumstances 
of  the  case  ;  '  and  this  presumption,  when  unexplained,"  either  by 
direct  evidence,  or  by  the  character  and  habits  of  the  possessor,  or 
otherwise,  is  usually  regarded  by  the  jury  as  conclusive.^  The 
question  as  to  what  amounts  to  recent  possession,  varies  according 
as  the  stolen  article  is  or  is  not  calculated  to  pass  readily  from  hand 
to  hand.  Thus,  where  two  ends  of  woollen  cloth  in  an  unfinished 
state,  consistinsf  of  about  twenty  yards  each,  were  found  in  the 
possession  of  the  prisoner  two  months  after  they  had  been  stolen, 
Mr.  Justice  Patteson  held  that  the  prisoner  should  explain  how  he 
came  by  the  property.*  But,  where  the  only  evidence  against  a 
prisoner  was,  that  certain  tools  had  been  traced  to  his  possession 
three  months  after  their  loss,  Mr.  Justice  Parke  directed  an  ac- 
quittal ;  ^  and  Mr.  Justice  Maule  pursued  a  similar  course  on  an 
indictment  for  horse  stealing,  where  it  appeared  that  the  horse  was 
not  discovered  in  the  custody  of  the  accused  until  after  six  months 
from  the  date  of  the  robbery."  So,  where  goods,  lost  sixteen 
months  before,  were  found  in  the  prisoner's  house,  and  no  other 
evidence  was  adduced  against  him,  he  was  not  called  upon  for  his 
defence.'  Indeed,  the  finding  of  stolen  property  in  the  /202fse  of  the 
accused,  provided  there  were  other  inmates  capable  of  committing 
the  larceny,  will  of  itself  be  insufficient  to  prove  his  possession, 
however  recently  the  theft  may  have  been  effected ;  ^  though,  if 


1  R.  V.  Langmead,  1  L.  &  Cave,  427;  9  Cox,  464,  S.  C. 

^  R.  V.  Exall,  4  Fost.  &  Fin.  922,  per  Pollock,  C.  B. 

5  2  East,  P.  C.  656;  R.  v.  ,  2  C.  &  P.  459;  the  State  i-.  Adams,  1  Hayw. 

463;  Wills,  Cir.  Ev.  53.  "  Furtum  prsesumitur  commissum  ab  illo,  penes 
quem  res  furata  inveuta  fuerit,  adeo  nt  si  non  docuerit  a  quo  rem  habuerit, 
juste,  ex  ilia  inventione,  poterit  subjici  tormentis. "  2  Masc.  de  Prob.,  concl. 
834;  Menocli.  de  Prajs.  lib.  5,  pises,  31.     See  ante,  §  63. 

*  R.  V.  Partridge,  7  C.  &  P.  551. 

5  R.  V.  Adams,  3  C.  &  P.  600.  See  R.  v.  Cocldn,  2  Lew.  C.  C.  235,  where 
two  sacks  were  found  in  the  prisoner's  possession  twenty  days  after  they  had 
been  missed;  and  Coleridge,  J.,  left  the  question  to  the  jury,  observing,  that 
"stolen  property  usually  passes  through  many  hands."  See  the  observations 
of  the  Reporter  on  this  presumption,  id. 

«  R.  V.  Cooper,  3  C.  &  Kir.  318;  R.  v.  Harris,  8   Cox,   333,  per  Channel!,  B. 

'  R.  V.  ,  2  C.  &  P.  459,  per  Bayley,  J. 

*  2  St.  Ev.  614,  n.  g.     See  Ex  parte  Ransley,  3  D.  &  R.  572.     In  that  case, 
11   LAW  OF  EVID. — V.  I.  (3027) 


162  RECENT  POSSESSION  OF  STOLEN  PROPERTY.  [PART  I. 

coupled  with  proof  of  other  suspicious  circumstances,  it  may  fully 
warrant  the  prisoner's  conviction,  even  though  the  property  be  not 
found  in  his  house  until  after  his  apprehension/ 


§  141.  This  presumption,  which  in  all  cases  is  one  of  fact  rather 
than  of  law,  is  occasionally  so  strong  as  to  render  unnecessary  any 
direct  proof  of  what  is  called  the  corpus  delicti.  Thus,  to  borrow 
an  apt  illustration  from  Mr.  Justice  Maule,  if  a  man  were  to  go  into 
the  London  Docks  quite  sober,  and  shortly  afterwards  were  found 
very  drunk,  staggering  out  of  one  of  the  cellars,  in  which  above  a 
million  gallons  of  wine  are  stowed,  "I  think,"  says  the  learned 
judge, — and  most  persons  will  probably  agree  with  him, — "that 
this  would  be  reasonable  evidence  that  the  man  had  stolen  some  of 
the  wine  in  the  cellar,  though  no  proof  were  given  that  any  parti- 
cular vat  had  been  broached,  and  that  any  wine  had  actually  been 
missed."  ^ 


§  142.^  The  presumption  under  discussion  is  not  confined  to  ^  123 
cases  of  theft,  but  applies  to  all  crimes,  even  the  most  penal. 
Thus,  on  an  indictment  for  arson,  proof  that  property,  which  was 
in  the  house  at  the  time  it  was  burnt,  was  soon  afterwards  found 
in  the  possession  of  the  prisoner,  has  been  held  to  raise  a  probable 
presumption  that  he  was  present  and  concerned  in  the  offence.* 
A  like  inference  has  been   raised  in  the  case  of  mui-der  accom- 


the  bare  finding  of  smngglerl  spirits  in  the  defendant's  house,  during  his 
absence  from  home,  was  held  insufiScient  to  support  a  conviction  under  11  G. 
1,  c.  30,  'i  16  (now  repealed  by  30  &  31  V.,  c.  59),  for  knowingly  harbouring 
and  concealing  three  gallons  of  foreign  Geneva,  &c.  Abbott,  C.  J. ,  observed, 
"  The  mere  naked  fact  of  the  spirits  being  found  in  the  defendant's  house  dur- 
ing his  absence  cannot  be  considered  as  conclusive  evidence  of  knowledge  to 
support  a  conviction  on  this  statute.  There  is  abundant  ground  for  suspicion, 
but  we  cannot  say  that  it  is  a  clear  and  satisfactory  ground  to  convict."  See 
also  R.  V.  Hale,  2  Cowp.  728. 

1  E.  V.  Watson,  2  Stark.  R.  139,  per  Ld.  Ellenborough  &  Abbott,  J. 

2  R.  V.  Barton,  Pearce  &  D.  284.  See,  also,  R.  v.  Mockford,  11  Cox,  16. 
In  R.  V.  Williams,  11  Co.x,  684,  Montague  Smith,  J.,  is  reported  to  have  laid 
down  the  law  in  a  very  different  spirit;  but  that  case  surely  cannot  be  relied 
upon.  ^  Gr.  Ev.  §  34. 

*  R.  V.  Rickman,  2  East,  P.  C.  1035. 

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CHAP,  v.]  PRESUMPTION  OMNIA  RITE  ESSE  ACTA.  163 

panied  by  robbery,'  in  the  case  of  burglary,^  and  in  the  case  of 
the  possession  of  a  quantity  of  counterfeit  money." 

§  143.  One  of  the  most  important  presumptions  known  to  the  ?  124 
law  is  that  which  is  usually  embodied  in  the  maxim  ^^ omnia 
prcesumuutur  rite  esse  actay  This  presumption, — which  in  prin- 
ciple is  nearly  allied  to  that  of  innocence, — is,  as  we  have  seen,* 
in  some  instances  conclusive,  but  in  the  great  majority  of  cases 
to  which  it  applies,  it  is  only  available,  donee  probetur  in  con- 
trarium.'^  The  application  of  this  presumption  to  acts  of  an  official 
or  judicial  character  will  be  best  illustrated  by  referring  to  one 
or  two  decisions.*'  For  instance,  it  has  been  held,  that,  where 
successive  decisions  are  inconsistent  with  a  general  order  of  the 
coui't,  reversal  of  that  order  ought  to  be  presumed.^  So,  on  an 
indictment  for  perjury  in  an  answer  to  a  bill  in  Chancery  under  the 
old  practice,  proof  of  the  signatures  of  the  defendant,  and  of  the 
Master  in  Chancery  before  whom  the  answer  purported  to  have  been 
sworn,  has  been  held  sufficient  evidence  that  the  defendant  was 
regularly  sworn  to  the  truth  of  its  contents,  though  the  clerk,  who 
proved  the  handwriting  of  the  Master,  had  no  recollection  of  ad- 
ministering the  oath,  and  admitted  that  the  jurat  was  not  written 
by  himself.*  So,  where  a  town  was  proved  to  be  in  the  military 
occupation  of  an  enemy,  and  proclamations,  purporting  to  be  signed 
by  the  general  in  command,  were  posted  on  its  walls,  this  was  held 
to  be  evidence  whence  a  jury  might  infer  that  the  placards  had  been 
printed  and  posted  by  the  authority  of  the  commander.^ 

§  144.   Again,    on     an     indictment    for     bigamy,    proof    of    the    ^  ^^ 


,  1  Wills,  Cir.  Ev.  61. 

2  See  R.  V.  Gould,  9  C.  &  P.  364;  R.  v.  Exall,  4  Post.  &  Fin.  922. 

^  R.  V.  Fuller,  R.  &  R.  308;  R.  v.  Jarvis,  25  L.  J.,  M.  C.  30;  Pearce  &  D. 
552,  S.  C.  *  Ante,  |§  84—88. 

^  See  R.  I'.  Bjornsen,  1  L.  &  Cave,  545;  10  Cox,  74;  34  L.  J.,  M.  C.  180, 
S.  C. 

®  See,  also,  Lee  v.  Johnstone,  1  Law  Rep.,  H.  L.  Sc.  426. 

'  Bohun  v.  Delessert;  2  Coop.  21,  per  Ld.  Eldon;  Man  n.  Ricketts,  id.  8,  21, 
per  Ld.  Lyndhurst. 

**  R.  V.  Benson,  2  Camp.  508,  per  Ld.  Ellenborough.  See,  also,  Cheney  v. 
Courtois,  13  Com.  B.,  N.  S.  634.  »  Bruce  v.  Nicolopulo,  11  Ex.  li.  129. 

(3029) 


164  PRESUMPTION  OMNIA  BITE  ESSE  ACTA.  [PART.  I, 

solemnisation  of  tlio  lirst  marriage  iu  a  "Wesleyan  chapel  in  the 
presence  of  the  registrar,  and  of  the  entry  of  such  marriage  in  his 
book,  has  been  held  to  raise  a  prima  facie  presumption  that  the 
chapel  was  duly  registered;'  and  in  another  similar  prosecution, 
where  the  marriage  was  shown  by  a  witness  present  at  it  to  have 
been  solemnised  in  a  parish  church  by  the  curate  of  the  parish,  it 
was  deemed  unnecessary  to  prove  either  the  registration  of  the 
marriage,  or  the  fact  of  any  licence  having  been  granted,  or  of  any 
banns  having  been  published.^  So,  the  constant  performance  of 
divine  service  from  an  early  period  in  a  chapel,  raises  a  prima  facie 
presumption  that  it  has  been  duly  consecrated.^ 

§  144a.  a  recent  decision  in  Ireland  has  carried  this  presumption 
to  its  extreme  limit.  In  that  cas9  a  shopkeej^er,  prior  to  the  passing 
of  the  Weights  and  Measures  Act,  1878,*  was  prosecuted  for  using 
weights  which  were  light  when  compared  with  the  county  standard, 
but  no  proof  was  furnished  that  the  county  standard  had  been  com- 
pared with  the  imperial  standard  within  the  last  five  years,  although 
such  comparison  was  expressly  required  by  statute.  The  court, 
however,  held  that  this  evidence  was  unnecessary,  the  prima  facie 
presumption  being  that  the  officials  in  charge  of  the  local  standards 
had  performed  their  duty,  and  that,  consequently,  the  comparison 
had  been  properly  made.^ 

§  145.  Again,  a  party  being  detained  for  debt  in  the  gaol  of 
the  sheriff  of  Devonshire,  a  writ  of  ca.  sa.  at  the  suit  of  the  sheriff 
was  directed  to  the  coroner  of  the  county,  and  was  lodged  with 
the  keeper  of  the  gaol.  <  On  motion  to  discharge  this  party  out 
of  custody  on  the  ground  of  irregularity  in  the  proceedings, 
it  did  not   appear  from   the   affidavits  that  the  writ  was  ever  in 


J  R.  V.  MainAvaiin.;,  26  L.  J.,  M.  C.  10;  7  Cox,  192;  Dear.  &  Bell,  132, 
S.  C;  Hichel  r.  Lambert,  15  Com.  B.,  N.  S.  781;  33  L.  J.,  C.  P.  137,  S.  C; 
K.  V.  CVadock,  3  Post.  &  Fin.  837,  per  Willes,  J.,  and  Pollock,  C.  B. 

2  R.  V.  Allison,  R.  &  R.  109.  See  Limerick  v.  Limerick,  32  L.  J.,  Pr.  & 
Mat.  22;  4  Swab.  &  Trist.  252,  S.  C. 

^  Rugg  V.  Kingsmill,  1  Law  Rep.,  Adm.  &  Ece.  343;  R.  v.  Cresswell,  45  L. 
J.,  M.  C.  77;  13  Cox,  12(5;  and  L.  R.  1  Q.  B.  D.  446,  S.  C. 

♦  41  &  42  v.,  c.  49. 

6  Hill  V.  Hennigan,  I.  R.,  11  C.  L.  522. 

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CHAP,  v.]  OFFICIAL  AND  JUDICIAL  ACTS.  165 

the  coroner's  hands,  but  in  a  return  which  the  gaolor  had  made 
to  a  writ  of  habeas  corpus  previoiTsly  issued,  the  ca.  sa.  was  set 
out,  together  with  a  certificate  by  the  coroner,  that  this  was  a 
true  copy  of  the  writ.  Upon  these  facts  the  court  gave  such  credit 
to  the  regularity  of  the  proceedings,  as  to  presume  that  the  writ 
had  in  due  course  come  to  the  gaolor  thrdugh  the  coroner.'  So, 
where  a  parish  certificate  purported  to  be  granted  by  A,  the  only 
churchwarden,  and  B,  the  only  overseer  of  the  parish,  the  court, 
after  a  lapse  of  sixty  years,  during  which  time  the  appellant 
parish  had  submitted  to  the  certificate,  presumed  in  its  favour 
that,  by  custom,  there  was  only  one  churchwarden  in  the  parish, 
and  that  two  overseers  had  been  originally  appointed,  but  that  one 
of  them  was  dead,  and  his  vacancy  not  filled  up  at  the  date  of  the 
certificate.'  A  like  presumption  was  made  in  favour  of  a  parish 
indenture  of  apprenticeship,  which  was  signed  only  by  one 
churchwarden  and  one  overseer.^  So,  where  a  parish  deed  of 
apprenticeship  had  been  allowed  by  the  justices  pursuant  to  the 
statute,*  the  court,  in  the  absence  of  evidence  to  the  contrary, 
presumed  that  notice  had  been  duly  given  to  the  officers  of  the 
parish,  where  the  apprentice  was  to  serve  f  and  where  a  similar 
indenture,  certified  by  the  allowance  of  the  justices,  contained  a 
recital  of  the  order  of  binding,  it  was  held  that  no  evidence  of 
such  order,  beyond  the  indenture  itself,  was  necessary.*'  So,  where 
the  deed  of  apprenticeship,  executed  thirty  years  before,  and  under 
which  the  apprentice  had  regularly  served  his  time,  was  proved  to 
be  lost,  and  it  further  appeared  that  the  parish,  in  which  the 
pauper  was  settled  under  this  indenture,  had  relieved  him  for  the 
last  twelve  years,  the  court  considered  that  the  Sessions  had  acted 
rightly  in  presuming  that  the  deed  was  properly  stamped,  though 


1  Bastard  v.  Trutcli,  3  A,  &  E.  451;  5  N.  &  M.  109;  4  Dowl.  6,  S.  C. 

2  E.  V.  Catesby,  2  B.  &  C.  814;  see.  also,  R.  v.  Whitchurch  7  B.  &  C.  573. 
From  R.  v.  Upton  Gray,  10  B.  &  C.  807,  it  appears  that  this  presumption  is 
rather  one  of  fact  than  of  hnv. 

^  R.  V.  Hinckley,  12  East,  361;  R.  v.  Stainforth,  11  Q.  B.  66. 

*  56  G.  3,  c.  139,  U  1,  2;  3.  &  4  AV.  4,  c.  63,  ^  1. 

*  R.  r.  Whiston,  4  A.  &  E.  607;  6  N.  &  M.  65,  S.  C. ;  R.  v.  Whitney,  5  A.  & 
E.  191;  6N.  &M.  552,  S.  C. 

«  R.  V.  Stainforth  11  Q.  B.  66.  See,  also,  R.  v.  St.  Mary  Magdalen,  2  E.  & 
B.  809;  R.  v.  Broadhempston,  28  L.  J.,  M.  C.  18;  1  E.  &  E.  154,  S.  C. 

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166  SUMMARY  CONVICTIONS — JURISDICTION.  [PART  L 

the  stamp  officers  proved  that  it  did  not  appear  in  their  office,  that 
any  such  indenture  had  been  stamped  during  the  last  thirty-one 
years.' 


§  146.  In  like  manner  every  reasonable  intendment  will  be  ?  12.1 
made  in  support  of  an  order  of  justices,  provided  it  appear  on  the 
face  of  the  order  that  the  justices  had  j^irisdiction;"  but  this 
rule  does  not  extend  to  convictions,  which  combining,  as  they 
do  summary  power  with  penal  consequences,  are  watched  with 
peculiar  vigilance  by  the  superior  courts,  and  are  construed  with 
at  least  as  great  strictness  as  indictments.'*  Still,  even  with 
respect  to  convictions,  if  the  aidhority  of  the  magistrate  can  be 
distinctly  collected  from  the  facts  stated  on  the  record,  the  court 
will  not  be  asiwie  in  discovering  irregularities  in  the  proceedings; 
and  the  safest  rule  which  can  be  laid  down  on  the  subject  is,  in 
the  words  of  Lord  Ellenborough,  that  the  court  "  can  intend 
nothing  in  favour  of  convictions,  and  tcill  intend  nothing  against 
them."  * 


§  147.  Neither  does  this  presumption  apply  so  as  in  any  event  I  126 
to  give  jurisdiction  to  inferior  courts,  or  to  magistrates,  or  others, 
acting  judicially  under  a  special  statutory  power;  but  in  all  such 
cases,  every  circumstance  required  by  the  statute  to  give  juris- 
diction must  appear  on  the  face  of  the  proceedings,  either  by 
direct  averment,    or    by  reasonable    intendment.^      There    is    no 


'  R.  V.  Long  Buckby,  7  East,  45.  In  this  case,  as  also  in  that  of  R.  v.  Cates- 
by,  2  B.  &  C.  814,  tlie  judgment  of  the  court  partly  rested  on  the  presumption 
of  validity  arising  from  long  acquiescence.     See  ante,  ?§  126 — 131,  139. 

^  R.  V.  Morris,  4  T.  R.  552,  per  Ld.  Kenyon;  Ormerod  v.  Chadwick,  16  M.  & 
AV.  367;  lei.  v.  Preston,  12  Q.  B.  816,  825,  826;  R.  v.  Stainforth,  11  Q.  B.  66. 

^  R.  t;.  Morris  4  T.  R.  552;  R.  i'.  Baines,  2  Ld.  Ray.  1265,  1269;  Fletcher  t;. 
Calthrop,  6.  Q.  B.  880,  891;  R.  v.  Little,  1  Burr.  613,  per  Ld.  Mansfield;  R.  v. 
C'orden,  4  id.  2381, 'where  the  court  observed  that  "a  tight  hand  ought  to  be 
liolden  over  these  summary  convictions;"  R.  v.  Pain,  7  D.  &  R.  678,  per  Abbott, 
C.  J.;  R.  V.  Daman,  2  B.  &  A.  378. 

*  R.  V.  Hazell,  13  East,  141.     See  Paley  on  Conv.  74—77. 

^  R.  V.  All  Saints,  Southampton,  7  B.  &  C.  790,  per  Holroyd,  J.;  Gosset  v. 
Howard,  10  Q.  B.  452,  453;  R.  v.  Helling,  1  Str.  8,  per  Pratt,  C.  J.;  R.  v.  Tot- 
ness,  11  Q.  B.  80;  R.  v.  Hulcott,  6  T.  R.  583. 

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CHAP,  v.]  OFFICIAL  AND  JUDICIAL  ACTS.  167 

distinction,  in  this  respect,  between  convictions,  commitments,' 
inquisitions,  warrants  to  arrest,  examinations,  or  orders  ;"  and 
whether  the  order  be  made  by  the  Lord  Chancellor,  under  the 
special  Act,  or  by  a  justice  of  the  peace,  the  facts  which  gave  the 
authority  must  be  stated.'*  But  though  the  High  Court  of  Justice, 
in  the  exercise  of  its  superintending  power,  will  intend  nothing  in 
favour  of  inferior  jurisdictions,  it  will  intend  nothing  against  them, 
but  will  decide  according  to  the  very  language  employed  in  the 
order  or  other  judicial  document.*  On  motions  for  a  prohibition, 
the  judges  of  that  court  have  more  than  once  emphatically  rejected 
any  intendment  that  the  Ecclesiastical  Courts  would  outstep  their 
duty,  or  act  in  any  way  inconsistently  with  the  law  f  and  on  the 
same  principle  they  have  refused  to  anticipate  the  decision  of  the 
master  on  a  question  of  costs,  as  they  cannot  presume  that  he  will 
decide  erroneously.® 


§  147a.  In  a  few  cases  the  presumption  under  discussion  has, 
by  some  caprice  of  the  law  or  of  the  lawyers,  been  ignored,  though 
its  recognition  would  have  been  productive  of  much  public  ad- 
vantage. For  example,  if  a  highway  rate  has  been  duly  entered  in 
a  rate-book  the  non-legal  mind  might  imagine  that  the  production 
of  the  official  book  would  furnish  at  least  prima  facie  evidence,  not 
only  of  the  allowance  of  the  rate  by  the  justices,  but  also  of  its 
publication  in  accordance  with  the  law.  Yet  this  is  not  the  case  ; 
and  the  fact  that  the  rate  has  been  duly  published  must  still  be 
proved  by   independent    evidence.^     With    poor-rates    the    law  is 


^  But  a  warrant  of  commitment  which  purpoi'ts  to  be  founded  on  a  pre- 
ceding conviction  will  he  good,  though  it  does  not  state  that  the  evidence 
was  given  on  oath,  or  in  the  presence  of  the  prisoner,  Ex  parte  Bailey,  &  Ex. 
parte  Collier,  23  L.  J.,  M.  C.  161 ;  3  E.  &  B.  607,  S.  C. 

^  Day  V.  King,  5  A.  &  E.  359,  per  Williams,  J. ;  Brook  v.  Jenney,  2  Q.  B. 
273,  per  id. ;  Johnson  v.  Eeid,  6  M.  &  W.  124  ;  Gossett  v.  Howard,  10  Q.  B. 
453. 

^  Christie  v.  Unwin,  11  A.  &  E.  379,  per  Coleridge,  J. 

*  E.  V.  Helling,  1  Str.  8,  per  Pratt,  C.  J. ;  Christie  v.  Unwin,  11  A.  &  E. 
379,  per  Coleridge,  J. ;  In  re  Clarke  2  Q.  B.  630,  per  Ld.  Denman. 

5  Chesterton  v.  Farlar,  7  A.  &  Ei  713  ;  Hall  v.  Maule,  id.  721 ;  Hallack  v. 
U.  of  Cambridge,  1  Q.  B.  593,  614,  615. 

«  Head  v.  Baldry,  8  A.  &  E.  605. 

'  Bird  V.  Adcock,  47  L.  J.,  M.  C.  123. 

(3033) 


1G8  SOLEMN  ACTS  OF  PRIVATE  PERSONS.  [PAKT  I. 

different ;  for  the  Legislature  in  favour  of  those  imposts  has 
specially  enacted,  that  "  the  production  of  the  book  purporting  to 
contain  a  poor-rate,  with  the  allowance  of  the  rate  by  the  justices, 
shall,  if  the  rate  is  made  in  the  form  prescribed  by  law,  be  prima 
facie  evidence  of  the  due  making  and  publication  of  such  rate."^ 


§  148.  This  presumption  has,  in  many  instances,  been  recog-  ^  lo-; 
nised  in  support  of  the  solemn  acts  of  even  x^rlvate  persons,  but  a 
reference  to  a  few  of  the  more  modern  cases  will,  it  is  hoped,  be 
sufficient  to  illustrate  its  operation  in  connexion  with  such  acts. 
Thus,  although  in  the  case  of  contracts  not  under  seal,  a  con- 
sideration must  in  general  be  averred  and  proved,  yet  hills  of 
exchange  and  promissory  notes  enjoy  the  privilege  of  being 
presumed,  prima  facie,  to  be  founded  on  a  valuable  considera- 
tion.^ The  law  raises  this  presumption  in  favour  of  these 
instruments,  partly,  because  it  is  important  to  preserve  their 
negotiability  intact,  and  partly  because  the  existence  of  a  valid 
consideration  may  reasonably  be  inferred  from  the  solemnity  of 
the  instruments  themselves,  and  the  deliberate  mode  in  which 
they  are  executed.^  So,  if  secondary  evidence  is  tendered  to 
prove  the  contents  of  an  instrument,  which  is  either  lost,  or 
retained  by  the  opposite  party  after  notice  to  produce  it,  the  court 
will  presume  that  the  original  was  duly  stamped,  unless  some 
evidence  to  the  contrary,  as,  for  example,  that  it  was  unstamped 
when  last  seen,*  can  be  given. ^  So,  under  the  Act  of  1877  to  facili- 
tate leases  and  sales  of  settled  estates,  the  execution  of  a  lease  by 
the  lessor  furnishes  sufficient  presumptive  evidence  that  the  coun- 
terpart has  been  duly  executed  by  the  lessee.®     So,   where  lands 

1  "The  Poor-Eate  Assessment  and  Collection  Act,  18G9,"  32  &  33  V., 
c.  41,  i  18. 

2  45  &  46  v.,  c.  61,  ?  30.  Collins  v.  Martin,  1  B.  &  P.  651  ;  Holliday  v. 
Atkinson,  5  B.  &  C.  501  ;  Story,  Bills,  II  16,  178.     See  ante,  ?  86. 

^  Story,  Bills,  §?  16,  178. 

*  Marine  Investment  Co.  v.  Haviside,  5  Law  Eep.,  H.  L.  624  ;  42  L.  J.,  Ch. 
173,  per  Dom.  Proc.  S.  C. 

^  Hart  V.  Hart,  1  Hare,  1,  per  Wigram,  V.-C;  Crowther  v.  Solomons,  6 
Com.  B.  758  ;  Pooley  v.  Goodwin,  4  A.  &  E.  94  ;  Crisp  v.  Anderson,  1  Stark. 
E.  35  ;  E.  V.  Long  Buckby,  7  East,  45 ;  Closmadeuc  v.  Carrel,  18  Com.  B.  36. 
See  Arbon  v.  Fussell,  1  New  E.  31,  per  Ex.;  Connor  v.  Cronin,  7  Ir.  Law  E, 
480;  Herbert  v.  Eae,  13  Ir.  Eq.  E.,  N.  S.  25,  per  Smith,  M.  E.;  33  &  34  V., 
C.46,  ?58,  Ir.  '  «  40  &  41  V.,  c.  18,  §48. 

(3034) 


CHAP,  y.]         PRESUMPTIONS  RESPECTING  EXECUTION  OF  DEEDS.         169 

originally  leasehold  have  been  dealt  with  as  freehold  for  a  long 
period  by  persons  in  possession,  a  presumption  will  be  raised,  as 
between  parties  claiming  under  such  persons,  that  the  reversion 
has  been  got  in.'  So,  in  the  absence  of  all  proof,  as  to  which  of 
two  deeds  of  even  date  was  first  executed,  the  court  will  presume 
in  favour  of  that  order  of  priority,  which  will  best  support  the  clear 
intent  of  the  parties."  So,  where  an  act  has  been  done  by  a  joint 
stock  company,  to  the  legality  of  which  certain  formalties  are 
requisite,  and  the  circumstances  are  such  that  acquiescence  may  be 
imputed  to  the  shareholders,  a  compliance  with  the  necessary 
formalities  will,  as  against  the  company,  be  presumed.^ 


§  149.  In  like  manner,  where  the  attestation  of  a  deed  has  been 
in  the  usual  form,*  and  the  signature  of  the  party  has  been  proved, 
the  jury  have  more  than  once  been  advised  to  presume  a  due 
sealing  and  delivery,  and  that,  too,  in  cases  where  the  attesting 
witness  has  denied  all  recollection  of  any  other  form  having  been 
gone  through  beyond  the  mere  signing.^  Neither  is  it  necessary, 
in  order  to  constitute  a  valid  sealing,  that  an  impression  should 
be  made  with  wax  or  with  a  wafer,  but  an  impression  made  in  ink 
with  a  wooden  block  will  suffice  ;  ^  and  even  though  no  impression 
appear  on  the  parchment  or  paper,   still,  if  the   instrument  be  a 

1  Holmes  v.  Mil  ward,  47  L.  J.,  Ch.  522,  per  Fry,  J. 

2  Taylor  v.  Horde,  1  Burr.-  107.  See  R.  v.  Asliburton,  8  Q.  B.  87G  ;  Gart- 
sidei'.  Silkstoue,  &c.,  Co.,  L.  R.  21  Ch.  D.  762,  per  Fry,  J.;  51  L.  J.,  Ch.  828, 
S.  C. 

3  Re  the  British  Prov.  Life  &  Fire  Ass.  Soc,  32  L.  J.,  Ch.  326;  1  De  Gex, 
J.  &  S.  488,  S.  C,  nom.  Grady's  case;  Lane's  Case,  1  De  Gex,  J.  &  S.  504,  513, 
l)er  Ld.  Westbury,  C. 

*  As  to  presumption  in  favour  of  a  will  having  a  due  attestation  clause,  see 
post,  1 1056. 

'"  Fasset  t'.  Brown,  Pea.  R.  23;  Grellier  v.  Neale,  id.  146,  per  Ld.  Kenyon; 
Talbot  f.  Hodgson  7  Taunt.  251;  Hall  v.  Bainbridge,  12  Q.  B.  699;  Burling 
V.  Paterson,  9  C.  «&  P.  570,  per  Patteson,  J.;  Davidson  v.  Cooper,  11  M.  & 
W.  784,  per  Ld.  Abinger.  See  also,  Doe  r.  Lew'is,  7  C.  &  P.  574;  Doe  v. 
Burdett,  4  A.  &  E.  1;  9  A.  &  E.  936;  6  M.  &  Gr.  386;  10  CI.  &  Fin.  340,  S.  C; 
Newton  v.  Ricketts,  8  H.  of  L.  Cas.  262;  and  Burnham  v.  Bennett,  1  De 
Gex  &.Sm.  513.  This  presumption,  though  formerly  treated  as  one  of  law,  is 
now  properly  considered  as  one  of  fact,  and  the  cj[uestion  is  in  all  cases  left  to 
the  jury. 

«  R.  V.  St.  Paul's,  Covent  Garden,  7  Q.  B.  232. 

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I  128. 


170         PRESUMPTIONS  RESPECTING  EXECUTION  OF  DEEDS.  [PART  I. 

deed,  and  on  proper  stamps,  and  be  stated  in  the  attestation  to 
have  been  duly  sealed  and  delivered,  it  will,  in  the  absence  of 
evidence  to  the  contrary,  and  especially  if  it  be  an  ancient  instru- 
ment,' be  presumed  to  have  been  sealed."  Moreover,  when  a 
deed  is  executed  by  a  corporate  body,  the  common  seal  need  not 
be  affixed,  but  the  corporation  may,  if  they  think  fit,  adopt  any 
jjrivate  sealiov  the  occasion,  and  the  jury  may  presume  that  the  use 
of  the  adopted  seal  was  a  corporate  act,  if  the  instrument  purport 
to  be  executed  by  the  head  and  the  subordinate  members  of  the 
corporation  "under  their  seal."  ^  The  presumption  in  favour  of 
the  due  execution  of  instruments  was  carried  to  a  great  length  in 
the  case  of  Cherry  v.  Heming.*  That  w^as  an  action  of  covenant 
brought  by  the  assignor  against  the  assignees  of  certain  letters- 
patent  to  recover  the  consideration  money  for  the  assignment,  and 
one  of  the  defendants  named  Heming  pleaded  non  est  factum.  At 
the  trial  Heming  produced  the  deed,  which  was  signed  and  exe- 
cuted by  all  the  parties  to  it  except  himself;  but  although  a  seal 
had  been  placed  for  him  in  the  usual  way,  his  signature  was  not 
attached,  neither  was  there  any  attesting  witness  to  his  execution. 
As,  however,  he  had  acted  under  the  deed,  and  recognised  it  as  a 
valid  instrument,  the  jury  presumed,  with  the  approbation  of  the 
court,  that  he  had  duly  executed  it. 

§  150.  Again,  in  the  absence  of  evidence  to  the  contrary  the  ?  128a 
law  presumes  that  a  man  knows  the  contents  of  any  deed  which  he 
executes.^  But  although  the  courts  are  in  general  bound  to  presume 
prima  facie  in  favour  of  deeds,  which  appear  to  have  been  duly 
executed,  an  exception  to  this  rule  is  recognised,  where  sales 
are  sought  to  be  set  aside  by  the  creditors  of  the  vendor,  as 
fraudulent  within  the  Stat.  13  El.  c.  5.  This  excellent  Act, — 
made  perpetual  by  26  &  27  V.,  c.   125, — enacts  in  substance,  that 


1  Crawford  &  Lindsay  Peer.,  2  H.  of  L.  Cas.  534,  543,  550—552. 

^  In  re  Sandilands,  6  Law  Kep.,  C.  P.  411;  Sug.  Pow.  232,  cited  by  Ld.  Den- 
man  in  R.  V.  St.  Paul's,  Covent  Garden,  7  Q.  B.  238. 

^  Jones  V.  Gal  way  Town  Commiss.,  11  Ir.  Law  K.  435. 

*  19  L.  J.,  Ex.  63;  4  Ex.  R.  633,  S.  C. 

^  Cooper,    in  re,    Cooper  v.    Cooper,   L.    R.  20  Ch.  D.  611,  629,  per  Jessel, 
M.  R. 

(3036) 


CHAP,  v.]  DEEDS  FKADULENT  UNDER  13  EL.  C.  5.  171 

all  conveyances  of  lands  or  chatties,  which  are  not  made  for  a 
valuable  consideration  and  bonfi  tide/  shall  be  void  as  against  any 
person,  including  the  Crown,"  whose  claims  on  the  original  owner 
of  the  property  shall  be  thereby  delayed  or  disturbed.^  When- 
ever* therefore,  any  transaction  is  sought  to  be  invalidated  by 
virtue  of  this  Act,  it  becomes  necessary  for  the  vendor  to  establish 
the  justice  of  his  title,  and  to  show  affirmatively,  not  only  that 
the  deed  under  which  he  claims  was  duly  executed,  but  that  it 
was  made  in  perfect  good  faith,  and  also  for  a  valuable,  as  contra- 
distinguished from  a  mere  good,  consideration/  In  determining 
the  question  of  bona  tides,  the  jury  will  take  into  consideration 
all  the  circumstances  connected  with  the  transfer,  always  bearing 
in  mind,  that,  if  the  conveyance  is  absolute,  that  is,  if  it  passes 
to  the  vendee  an  immediate  right  of  possession,  the  fact  of 'the 
vendor  being  allowed  to  continue  as  the  apparent  owner  of  the 
property,  must  naturally  raise  a  very  strong  presumption  of 
fraud. ^  If,  indeed,  the  conveyance  or  bill  of  sale  is  by  way  of 
mortgage,  and  the  mortgagee  is  not  to  take  possessiou  till  a 
default  in  payment  of  the  mortgage  money,  then,  as  the  nature  of 
the  ti'ansaction  does  not  call  for  any  change  of  possession,  the 
absence  of  such  change  will  not  of  itself  furnish  any  evidence  of 
collusion.'^ 


§  150a.   So  far  as  bills  of  sale  of  personal  chattels  are  concerned 
it  will  seldom  be  necessary  to  cal]  in  aid  the  Statute  of  Elizabeth; 


1  See  In  re  Ridler,  Ridler  v.  Ridler,  L.  R.,  22  Ch.  D.  74,  per  Ct.  of  App. ; 
52  L.  J.,  Ch.  343,  S.  C. 

2  Shaw  V.  Bran,  1  Stark.  R.  319;  Morewood  v.  Wilkes,  6  C.  &  P.  144; 
Perkins  v.  Bradley,  1  Hare,  219.     See  Whitaker  v.  Wisbey,  12  Com.  B.  44. 

2  See  Freeman  v.  Pope,  9  Law  Rep.,  Eq.  206;  39  L.  J.,  Ch.  148,  S.  C. ;  5 
Law  Rep.,  Ch.  Ap.  538,  and  39  L.  J.,  Ch.  689,  S.  C;  Crossley  v.  El  worthy,  12 
Law  Rep.,  Eq.  158;  Cornish  v.  Clark,  14  Law  Rep.,  Eq.  184;  per  Ld.  Romilly; 
42  L.  J.,  Ch.  14,  S.  C;  Kent  v.  Riley,  14  Law  Rep.,  Eq.  190,  per  Ld.  Romilly; 
Golden  v.  Gillam,  51  L.  J.,  Ch.  154;  L.  R.  20  Ch.  D.  389,  S.  C. ;  aflf.  on  app.; 
51  L.  J.,  Ch.  503;  Russell,  ex  parte,  re  Butterworth,  51  L.  J.,  Ch.  521,  x^er 
Ct.  of  App. 

*  Twyne's  case,  3  Coke,  80;  1  Smith;  L.  C.  1,  S.  C. 

^  Martindale  v.  Booth,  3  B.  &  Ad.  498;  1  Smith,  L.  C.  11,  12;  Lindon  v. 
Sharp,  6  M.  &  Gr.  898,  per  Tindal,  C.  J. 

«  Martindale  v.  Booth,  3  B.  &  Ad.  498;  1  Smith,  L.  C.  13,  14. 

(3037) 


172  PRESUMPTIONS  RESPECTING  DEEDS  OF  GIFT.  [PART  I. 

for  under  "  The  Bills  of  Sale  Act,  1882,"  these  instruments  are 
now  rendered  void  unless  they  set  forth  the  consideration  for  which 
they  were  given.' 

§  151.  In  deciding  upon  the  validity  or  invalidity  of  deeds,  the  ^  129 
courts  now  act  upon  more  enlightened  principles  than  used  to  be 
recognised  at  common  law;  and  whenever  it  is  shown  to  them  that 
any  person  by  donation  derives  a  benefit  under  a  deed  to  the  pre- 
judice of  another  person," —  and  the  more  especially  so,  if  any 
confidential  or  fiduciary  relation  subsists  between  the  parties, — 
they  so  far  presume  against  the  validity  of  the  instrument,  as  to 
require  some  proof,  varying  in  amount  according  to  circumstances, 
of  the  absence  of  anything  approaching  to  imposition,  over  reaching, 
undue  influence,  or  unconscionable  advantage.^  For  example,  if 
a  deed  of  gift,  or  other  disposition  of  property,  except  a  will,*  be 
made  in  favour  of  a  solicitor  by  a  client,^  of  a  medical  attendant  by 
a  patient,*^  of  a  parson  by  one  of  his  congregation,'  of  a  "spiritual 
medium"  by  one  of  his  dupes,*  of  a  trustee  by  a  beneficiary,"  of 
an  executor  by  a  legatee,'"  of  a  gaardian  by  a  ward,  of  a  parent  by  a 


1  45  &  46  v.,  c.  43,  §  8;  42  &  43  V.,  c.  50,  |  8,  Ir.  As  to  what  is  a  suffi- 
cient comiiliance  with  this  rule,  see  EX  parte  Firth,  re  Cowburn,  L.  K.,  19  Ch. 
D.  419;  51  L.  J.,  Ch.  473,  S.  C;  Hamlyn  v.  Betteley,  L.  R.,  5  C.  P.  D.  327; 
49  L.  J.,  C.  P.  465,  S.  C;  Hamilton  v.  Chaine,  50  L.  J.,  Q.  B.  456,  per  Ct.  of 
App.;  L.  R.  7  Q.  B.  D.  1,  319,  S.  C;  Ex  parte  Rolfe,  re  Spindler,  L.  R.,  19 
Ch.  D.  98;  51  L.  J.,  Ch.  88,  nom.  Re  Spindler,  ex  parte  Rolfe,  per  Ct.  of 
App. 

2  Cooke  V.  LaniGtte,  15  Beav.  234,  per  Romilly,  M.  R.  See  Coutts  v. 
Acworth,  38  L.  J.,  Ch.  694;  8  Law  Rep.,  Eq.  558,  S.  C. 

2  1  Story,  Eq.  Jur.  U  308—323.     See  Baker  v.  Bradley,  25  L.  J.,  Ch.  7. 

*  Parfitt  V.  Lawless,  41  L.  J.,  Pr.  &  Mat.  68;  2  Law  Rep.,  P.  &  D.  462, 
S.  C.     See  Ashwell  v.  Lomi,  2  Law  Rep.,  P.  &  D.  477. 

5  Gresley  v.  Mousley,  28  L.  J.,  Ch.  620;  1  Giff.  450,  S.  C;  4  De  Gex  &  J. 
78,  S.  C;  O'Brien  v.  Lewis,  32  L.  J.,  Ch.  569,  4  Giff.  221,  S.  C;  Gardener 
V.  Ennor,  35  Beav.  549;  M'Pherson  r.  Watt,  L.  R.,  3  App.  Cas.  254,  in  Dom. 
Proc,  Sc. 

«  Mitchell  V.  Homfray,  50  L.  J.,  Q.  B.  460.  per  Ct.  of  App.;  L.  R.  8  Q.  B. 
D.  587,  S.  C. ;  Dent  v.  Bennett,  4  Myl.  &  Cr.  569. 

'  Nottidge  V.  Prince,  2  Giff.  246;  Huguenin  v.  Baseley,  14  Ves.  273. 

»  Lyon  V.  Home,  37  L.  J.,  Ch.  674,  per  Giflard,  V.-C;  6  Law  Rep.,  Eq.  655, 
S.  C. 

9  Luft  V.  Lord,  34  Beav.  220. 

^"  Gray  v.  Warner,  42  L.  J.,  Ch.  556,  per  Wickens,  V.-C. 

(3038) 


CHAP,  v.]  PKESUMPTIONS  RESPECTING  DEEDS  OF  GIFT.  173 

child/  of  a  husband  by  a  wife,  of  an  agent  by  a  principal,"  or  of  a 
shrewd  man  of  business  by  an  infirm  ignorant  old  worn  an, ^  the 
court  will  regard  the  matter  with  jealous  suspicion,  and  will  either 
set  aside  the  instrument  as  conclusively  void,*  or  will  throw  upon  the 
person  benefited  the  burthen  of  establishing  beyond  all  reasonable 
doubt  the  perfect  fairness  and  honesty  of  the  entire  transaction.^ 

§  152.  A  grotesque  attempt  has  been  made  in  Ireland  to  extend  ^  12!) 
this  salutary  doctrine  to  a  case,  which  assuredly  its  framers  never 
contemplated.  A  woman,  while  living  in  adultery  with  a  married 
man,  had  in  the  ardour  of  her  affection  assigned  some  of  her 
property  to  secure  a  debt  which  was  owing  by  her  paramour.  When 
her  passion  cooled,  her  generosity  seemed  to  have  cooled  also;  and 
after  the  lapse  of  a  short  period  she  had  the  hardihood  to  apply  to 
the  Court  of  Chancery  to  set  aside  her  assignment  on  the  ground 
of  landue  influence.  Her  prayer  was  of  course  rejected,  the  court 
holding  that  the  doctrine  on  which  she  relied  for  relief  was  only 
applicable  when  some  lawful  relation  had  been  contracted  between 
the  parties.* 

§  153.    The   old   Court   of   Chancery   was   wont   to   look   with    .  ^^„ 
peculiar,  if  not  with  discreet,  favour  on  heirs  apparent  and  other 

1  Wright  V.  Yanclerplank,  2  Kay  <*c  J.  1;  25  L.  J.,  Ch.  753;  8  De  Gex, 
M.  &  G.  133,  S.  C;  Bainbrigge  v.  Browne,  L.  R.,  18  Ch.  D.  188,  per  Fry,  J.; 
Hartopp  V.  Hartopp,  21  Beav.  259;  Dimsdale  v.  Dimsdale,  25  L.  J., 
Ch.  806;  Bury  v.  Oppenheim,  26  Beav.  594;  Davies  v.  Davies,  2  New  R.  384, 
per  Stuart.  V.-C;  4  Giff.  417,  S.  C;  Potts  v.  Surr,  34  Beav.  543;  Turner  r. 
Collins,  7  Law  Rep.,  Ch.  Ap.  329. 

^  King  V.  Anderson,  I.  R.  8  Eq.  147. 

=>  Baker  v.  Monk,  33  Beav.  419;  4  De  Gex,  J.  &  S.  388,  S.  C,  by  Lds.  Js.; 
Summers  v.  Griffiths,  35  Beav.  27;  Slator  v.  Nolan,  I.  R.  11  Eq.  367. 

*  Tomson  v.  Judge,  3  Drew.  306.  This  was  the  case  of  a  deed  of  gift  by  a 
client  to  his  solicitor. 

^  1  Story,  Eq.  Jur.  U  308—323;  Hunter  v.  Atkins,  3  Myl.  &  K.  113; 
Nedby  v.  Nedby,  21  L.  J.,  Ch.  446;  Hoghton  v.  Hoghton,  15  Beav.  278; 
Grosvenor  i\  Sherratt,  28  Beav.  659;  Savery  v.  King,  5  H.  of  L.  Cas.  627, 
655,  656;  Espey  v.  Lake,  10  Hare,  260;  Billage  i'.  Southee,  9  Hare,  534.  See 
Priee  v.  Price,  1  De  Gex,  M.  &  G.  308;  Toker  v.  Toker,  31  Beav.  629;  3  De 
Gex,  J.  &  S.  487,  S.  C;  Phillips  v.  Mullings,  7  Law  Rep.,  Ch.  Ap.  244;  King 
V.  Anderson,  I.  R.  8  Eq.  625,  per  Ct.  of  App.,  reversing  S.  C.  id.  150.  See 
Taylor  v.  Johnston,  51  L.  J.,  Ch.  879. 

"  Hargreave  v.  Everard,  6  Ir.  Eq.  R.,  N.  S.  278. 

(3039) 


174  PRESUMPTIONS  IN  DEALING  WITH  REVERSIONS.        [PART.  I. 

expectant  heirs,  when  they  entered  into  negotiations  which  related 
to  their  expectancies.'  Every  person,  therefore,  who  dealt  with  an 
expectant  heir  for  his  reversion  was,  in  equity  at  least,  prima  facie 
presnrued  to  be  a  knave;  and  if  the  transaction  were  subsequently 
disputed,  the  burthen  of  proof  would  lie  upon  him  to  establish  its 
entire  fairness.^  The  soundness  of  this  doctrine  was  at  length 
questioned  by  some  of  our  prominent  lawyers,^  and  at  their 
instance  an  Act  was  passed  in  December,  1807,  which  enacts, 
that  "no  purchase  made  bona  fide,  and  without  fraud  or  unfair 
dealing,  of  any  reversionary  interest  in  real  or  personal  estate, 
shall  hereafter  be  opened  or  set  avside  merely  on  the  ground  of 
under- value."  *  It  will  be  noted  that  this  enactment  is  carefully 
limited  to  purchases  "  made  bona  fide  and  without  fraud  or  unfair 
dealing,"  and  it  not  only  leaves  untouched  the  law  which  governs 
unconscionable  bargains,  but  it  allows  under- value  to  be  still 
regarded  by  the  court  as  a  material  element  in  cases  where  fraud  is 
charged.^ 

§  154.  Another  important  presumption  recognised  in  equity  is,    ^  129b 
that  a  tenant  for  life,  or  other  person  having  a  partial  interest  in 
settled  estates,  who  pays  off  an  incumbrance  upon  them,  intends, 
prima  facie,  to  keep  alive  the  charge  against  the  inheritance  for 
his  own   benefit. "^     This    presumption,  however,  has,  on  technical 


^  Bromley  r.  Smith,  26  Beav.  644,  66.5;  Ld.  Portmore  v.  Taylor,  4  Sim. 
182;  Davies  v.  D.  of  Marlborough,  2  Swanst.  108;  Sharp  i-.  Leach,  31  Beav.. 
491;  Croft  v.  Graham.  2  De  Gex,  J.  &  S.  155;  Perfect  v.  Lane,  3  De  Gex,  F.  & 
J.  369;  Benyon  v.  Fitch,  35  Beav.  570. 

^  See  cases  cited  in  last  note. 

^  See  Webster  v.  Cook,  2  Law  Rep.,  Ch.  Ap.  542,  per  Ld.  Chelmsford,  C. ; 
36  L.  J.,  Ch.  753,  S.  C. 

*  31  v.,  c.  4,  §  1.  See  Miller  v.  Cook,  10  Law  Eep.,  Eq.  641 ;  40  L.  J.,  Ch. 
11,  S.  C;  Tyler  v.  Yates,  11  Law  Rep.,  Eq.  265;  6  Law  Rep.,  Ch.  Ap.  665; 
&  40  L.  J.,  Ch.  768,  S.  C,  per  Ld.  Hatherley,  C. ;  Jndd  r.  Green,  45  L.  J., 
Ch.  108. 

^  Ld.  Aylesford  v.  Jlorris,  8  Law  Rep.,  Ch.  Ap.  490,  per  Ld.  Selborne,  C. ; 
42  L.  J.,  Ch.  546,  548,  S.  C. ;  Beynon  v.  Cook,  10  Law  Rep.,  Ch.  Ap.  389. 
See,  also,  Nevill  v.  Snelling,  49  L.  J.,  Ch.  777,  per  Denman,  J.;  L.  R.,  15  Ch. 
D.  679,  S.  C;  O'Rorke  v.  Bolingbroke,  L.  R.,  2  App.  Cas.  814,  per  Dom  Proc, 
Ir.     See,  too,  Gen.,  Ch.  xxv.  vv.  29—34. 

^  Morley  v.  Morley,  and  Harland  v.  Morley,  25  L.  J.  Ch.  1 ;  5  De  Gex,  M.  & 
G.  610,  S.  C.     See  post,  §  176a. 

(3040) 


CHAP,  v.]      PAYING  OFF  INCUMBRANCES CHARITABLE  GRANTS.         175 

rather  than  substantial  grounds,  been  held  inapplicable  to  a  case 
where  a  tenant  for  life  had  paid  off  the  bond  debts  of  the  settlor.^ 
Neither  does  it  extend  to  the  case  of  a  charge  bearing  interest, 
where, — the  rents  and  profits  of  the  estate  having  been  insufficient 
to  meet  the  interest, — the  tenant  for  life  has  paid  the  balance  of  it 
out  of  his  own  pocket,  without  having  warned  the  remainderman 
of  his  intention  to  charge  the  excess  of  his  payments  on  the 
inheritance.  Here  equity  recognises  a  counter-presumption,  and 
conclusively  infers,  as  against  the  personal  representatives  of  the 
tenant  for  life,  either  that  the  rents  and  profits  were  sufficient 
to  keep  down  the  interest,  or  that  the  tenant  for  life  meant  to 
waive  his  right  to  bring  any  charge  upon  the  inheritance  for  the 
deficiency.^ 


§  155.  In  dealing  with  charitable  institutions,  and  in  inter-  §  i29c 
preting  charitable  grants,  the  courts  also  recognise  certain  definite 
presumptions.  Thus,  if  the  charity  were  founded  to  support  a 
religious  establishment,  or  to  promote  religious  education,  and  the 
intentions  of  the  founder  be  not  clearly  expressed,  the  prima  facie 
presumption  is,  first,  that  he  intended  to  support  an  establishment 
belonging  to  some  particular  form  of  religion,  or  to  promote  the 
teaching  of  certain  particular  doctrine ;  next,  that  the  form  of 
religion  or  doctrine  contemplated  was  that  which  he  himself  had 
professed ;  and  lastly,  if  no  evidence  be  adduced  of  his  enter- 
taining peculiar  religious  views,  that  the  established  religion  of 
the  country  was  the  one  meant  to  be  supported.  If,  however,  the 
charity  were  founded  for  purposes  of  mere  secular  education,  or  if 
it  were  one  of  a  purely  eleemosynary  character,  the  court,  in  the 
absence  of  any  expressed  intention  to  the  contrary,  will  presume 
that  the  instruction  in  the  one  case  was  intended  to  be  open  at 
least  to  all  denominations  of  Christians,  and  that  the  bounty  in 
the  other  might  be  shared  by  all  persons  in  distress,  whatever 
erroneous  opinions  on  the  subject  of  worship  they  might  chance  to 
entertain.^ 


1  Id.     See  Roddam  v.  Morley,  25  L.  J.,  Ch.  329  ;  26  L.  J.,  Ch.  438,  S.  C. 
^  Ld.  Kensington  (;.  Bouverie,  7  H.  of  L.  Cas.  557. 

^  Att.-Gan.  v.  Calvert,  23  Beav.  248,  per  Romilly,  M.  R.,  in  an  elaborate 
judgment. 

(3041) 


176  JOINT  TENANCY — VOLUNTARY  SETTLEMENTS.  [PART  I, 

§  156.  All  courts  noAv  hold, — contrary  to  what  was  once  considered 
to  be  the  law, — that  an  estate  for  life  without  impeachment  of  waste 
does  not  confer  upon  the  tenant  for  life  any  legal  right  to  commit 
"  equitable  wasfe,^'  unless  an  intention  to  confer  such  right  expressly 
appears  in  the  instrument  creating  the  estate.' 


§  157.  The  presumptions,  or,  rather,  the  rules  of  construction 
recognised  in  equity  with  respect  to  joint  tenancy  are  sufficiently 
singular.  Thus,  if  two  persons  jointly  advance  money  on  mort- 
gage, a  mere  tenancy  in  common  will  be  created,  though  the 
property  be  conveyed  to  them  as  joint  tenants,  because  in  this 
case  the  law  presumes  that  men  will  not  willingly  speculate  with 
money  which  they  lend."  But,  on  the  other  hand,  if  two  person, 
jointly  advance  money  as  purchasers,  and  the  sums  paid  by  each 
be  equal,  a  joint-tenancy  will  be  established,  because  here  it  is 
supposed  that  men  will  readily  gamble  as  to  survivorship  with 
respect  to  property  which  they  buy.^  The  reasoning,  which  draws 
a  distinction  between  these  two  cases,  has  been  denounced  by  an 
able  judge  as  "not  very  comprehensible;"*  and,  indeed,  it  savours 
of  the  legal  subtlety  of  a  bygone  age.  Still,  the  law  on  this  point 
seems  to  be  settled,  though  the  courts  have  so  far  yielded  to 
common  sense  as  to  hold,  that,  if  two  persons  make  a  purchase, 
and  one  of  them  advances  more  of  the  purchase  money  than  the 
other,  there  shall  be  no  survivorship,  notwithstanding  that  the 
words  "equally  to  be  divided"  be  omitted  from  the  deed.^ 

§  158.  As  voluntary  settlements  are  usually  mere  matters  of 
bounty,  ordinary  prudence  suggests  that  the  settlor  should  reserve 
to  himself  the  right  of  making  fresh  arrangements  ;  and  this 
doctrine  has,  of  late  years,  been  so  far  recognised  by  Courts  of 
Equity  that,  although  they  will  not  prima  facie  presume  the 
existence  of  some  mistake,  if  such  a  settlement  is  found  not  to 
contain  a  power  of  revocation,  they  will  certainly  take  that  circum- 


1  36  &  37  v.,  c.  66,  §  25,  subs.  3  ;  40  &  41  V.,  c.  57,  §  28,  subs.  3,  Ir. 
■^  Petty  V.  Styward,  1  Eq.  Cas.  Ab.  290. 
3  Rigden  v.  Vallier,  2  Ves.  Sen.  252  ;  3  Atk.  731,  S.  C. 
*  Harrison  v.  Barton,  30  L.  J.,  Ch.  215,  per  Wood,  V.-C. 
5  Rigden  v.  Vallier,  2  Ves.  Sen.  252 ;  3  Atk.  731,  S.  C. 

(3042) 


CHAP,  v.]     APPORTIONMENT  OF  RENTS EXECUTION  OF  WILLS.  177 

stance  into  account,  and  consider  it  as  entitled  to  some  weight,  in 
deciding  on  the  validity  of  the  instrument.'  All  parties,  therefore, 
who  rely  upon  an  irrevocable  voluntary  settlement,  ought  to  be 
prepared  to  prove,  that  the  settlor  was  properly  advised  when  he 
executed  it,  that  he  thoroughly  understood  the  efPect  of  omitting 
the  power,  and  that  he  intended  to  omit  it.^ 

§  159.  In  the  absence  of  any  express  stipulation  to  the  con-  g  129e 
trary  the  law,  since  the  1st  of  August,  1870,  has  presumed,  that 
"  all  rents,  annuities," — which  term  includes  salaries  and  pensions,^ 
— "  dividends,*  and  other  periodical  payments,  in  the  nature  of 
income,  whether  reserved  or  made  payable  under  an  instrument  in 
writing  or  otherwise,"  accrue  from  day  to  day,  like  interest  on 
money  lent,  and  are  apportionable  in  respect  of  time  accordingly.^ 
The  statute,  which  has  introduced  this  salutary  change  in  the  law, 
extends  to  all  Avills,  though  executed  before  its  passing,  provided 
that  they  have  come  into  operation  since  that  date.  In  a  case, 
therefore,  where  a  testator  made  his  will  in  1869,  and  died  in 
December,  1870,  the  court  held  that  the  rents  of  his  devised  real 
estate,  which  were  accruing  due  at  the  time  of  his  death,  must  be 
apportioned  between  the  devisee  and  the  parties  interested  in  the 
personal  residue.® 

§  160.  With  respect  to  the  execution,  alteration,  revocation,  and    I  130 

1  Hall  V.  Hall,  42  L.  J.,  Ch.  444;  8  Law  Rep.,  Ch.  Ap.  430,  S.  C,  overruling 
the  decree  of  Wickens,  V.-C,  14  Law  Rep.,  Eq.  365;  Phillips  v.  Mullings,  7 
Law  Rep.,  Ch.  Ap.  244.  See,  also,  Welman  v.  Welman,  L.  R.,  15  Ch.  D.  570, 
per  Malins,  V.-C.  ''  Id. 

3  Treacy  v.  Corcoran,  L  R.,  8  C.  L.  40;  33  &  34  V.,  c.  .35,  I  5. 

*  See  In  re  Griffith,  Carr  v.  Griffith,  L.  R.,  12  Ch.  D.  655,  per  Jessel,  M.  R. 

5  33  &  34  v.,  c.  35,  U  2,  7."  See,  also,  4  &  5  W.  4,  c.  22;  and  23  &  24  V., 
c.  154,  ?  49,  Ir.  See  Jones  v.  Ogle,  41  L.  J.,  Ch.  633,  per  Ld.  Romilly;  8  Law 
Rep.,  Ch.  Ap.  192,  S.  C. ;  and  42  L.  J.,  Ch.  335,  per  Ld.  Selborne.  See,  also, 
Capron  v.  Capron,  17  Law  Rep.,  Eq.  288;  43  L.  J.,  Ch.  677,  S.  C;  Re  Cline's 
Estate,  18  Law  Rep.,  Eq.  213;  Pollock  v.  Pollock,  18  Law  Rep.,  Eq.  329;  44 
L.  J.,  Ch.  168,  S.  C;  Hasluck  v.  Pedley,  44  L.  J.,  Ch.  143;  19  Law  Rep.,  Eq. 
271,  S.  C;  Daly  v.  Att.-Gen.,  I.  R.,  8  Eq.  595;  Re  Cox's  Trusts,  47  L.  J.,  Ch. 
735,  per  Hall,  V.-C;  L.  R.,  9  Ch.  D.  159,  S.  C;  Swansea  Bk.  v.  Thomas,  48  L. 
J.,  Ex.  344;  L.  R.,  4  Ex.  D.  94,  S.  C. 

6  Constable  v.  Constable,  L.  R.,  11  Ch.  D.  681,  per  Fry,  J.;  48  L.  J.,  Ch.  621, 
S.  C.  See  Lawrence  v.  Lawrence,  L.  R. ,  26  Ch.  D.  795  where  held  by  Pearson, 
J.,  that  the  new  law  extended  to  a  case,  where  the  testator  had  died  before  the 
passing  of  the  Act,  but  the  tenant  for  life  had  died  after  that  date. 

12  LAW  OF  EVID. — V.  I.  (3043) 


178  PRESOIPTIONS  RESPECTING  EXECUTION  OF  WILLS.     [PABT  I. 

construction  of  icills,  the  courts  recognise  several  presumptions, 
which  it  will  be  expedient  to  mention  in  this  place.'  First,  it  is 
a  general  rule  that,  on  proof  of  the  signature  of  the  deceased,  he 
wall  be  presumed  to  have  known  and  approved  of  the  contents 
and  effect  of  the  instrument  he  has  signed;'  such  knowledge  and 
approval  being  essential  to  the  validity  of  the  will.^  This  pre- 
sumption, however,  is  liable  to  be  rebutted  by  showing  the  exist- 
ence of  any  suspicious  circumstances:*  and  therefore,  if  the 
testator,  from  want  of  education,  or  from  bodily  infirmity,  was 
unable  to  read,"  or  if  his  capacity  at  the  time  of  executing  the 
instrument  is  a  matter  of  doubt  ;*^  or  if  the  party  who  is  materially 
benefited  by  the  will  has  prepared  it,  or  conducted  its  execution, 
or  has  been  in  a  position  calculated  to  exercise  undue  influence;' 
or  if  the  instrument  itself  is  not  consonant  to  the  testator's 
natural  affections  and  moral  duties;^ — a  more  rigid  investigation 
will  be  enforced,  and  probate  will  in  general  not  be  granted,  unless 
the  court  be  satisfied  by  additional  evidence,  that  the  paper  pro- 


'  For  other  presumptions  respecting  wills  made  prior  to  1st  Jan.,  1838,  see 
the  former  editions  of  this  Work,  H  131 — 134. 

2  Billinghuri^t  r.  Tickers,  1  Phillim.  E.  191;  Fawcett  r.  Jones,  3  Phillim.  R. 
476;  Guardhouse  v.  Blackburn,  1  Law  Rep.,  P.  &  D.  109;  35  L.  J.,  Pr.  &  Mat. 
116,  S.C;  Wheeler  v.  Alderson,  3  Hagg.  Ec.  R.  587;  Browning  v.  Budd,  6 
Moo.  P.  C.  R.  430. 

3  Hastilowr.  Stobie,  35  L.  J.,  Pr.  &  Mat.  18;  1  Law  Rep.,  P.  &  D.  64,  S.  C, 
per  Wilde,  J.  0.,'overrulling  a  dictum  of  Cresswell,  J.  O.,  in  Middlehurst  v. 
Johnson.  30  L.  J.,  Pr.  &  Mat.  14.  See  Cleare  v.  Cleare,  1  Law  Rep.,  P.  &  D. 
655;  38  L.  J.,  Pr.  &  Mat.  81,  S.  C. 

*  Von  Stentz  r.  Comyn,  12  Ir.  Eq.  R.  622,  642-^645,  per  Brady,  Ch. 

^  Barton  r.  Robins,  3  Phillim.  R.  455,  n.  6;  In  re  Duane,  31L.  J.,  Pr.  &  Mat. 
173;  2  Swab.  &  Trist.  590,  S.  C;  In  re  Wray,  I.  R.,  10  Eq.  266;  but  see  Long- 
champ  V.  Fish,  2  N.  R.  415. 

6  1  Phillim.  R.  193;  Ingram  v.  Wyatt,  1  Hagg.  Ec.  R.  384;  Dodge  v.  Meech, 
id.  620;  Dufaur  v.  Croft,  3  Moo.  P.  C.  R.  147. 

■  Mitchell  V.  Thomas,  6  Moo.  P.  C.  R.  137;  Scouler  r.  Plowright,  10  Moo.  P. 
C.  R.  440,  444—446;  Raworth  r.  Marriott,  1  Myl.  &  K.  643;  Greville  ?'.  Tylee, 
7  Moo.  P.  C.  R.  320;  Paske  v.  Ollat.  2  Phillim.  R.  324;  Zacharias  v.  Collis,  3 
id.  202;  Wheeler  v.  Alderson,  3  Hagg.  Ec.  R.  587;  Billinghurst  v.  Vickers,  1 
Phillim.  R.  187;  Fulton  v.  Andrew,  7  Law  Rep.,  H.  L.  461,  per  Ld.  Cairns, 
Ch.;  44  L.  J.,  Pr.  &  Mat.  23,  S.  C;  Burling  v.  Loveland,  2  Curt.  226,  227; 
Chambers  v.  Wood,  2  Ec.  &  Mar.  Cas.  485,  per  Ld.  Cottenham;  Paine  v.  Hall, 
18  Ves.  475;  O'Connel  v.  Butler,  Milw.  Ec.  Ir.  R.  102,  103;  Gore  v.  Gahagan, 
id.  220. 

«  See  Prinsep  &  E.  India  Co.  v.  Dyce  Sombre,  10  Moo.  P.  C.  R.  285. 

(3044) 


CHAP,  v.]     PRESUMPTIONS  RESPECTING  EXECUTION  OF  WILLS.  179 

pounded  does  really  express  the  true  will  of  the  deceased.'  In 
cases  of  extraordinary  suspicion,  it  will  of  course  be  highly  expe- 
dieint  to  prove,  either  that  instructions  were  given  by  the  deceased 
corresponding  with  the  actual  provisions  of  the  will,  or  that  the 
instrument  was,  at  the  time  of  execution,  read  to  or  by  the  testator, 
or  that  he  had  expressed  some  subsequent  knowledge  and  approval 
of  its  dispositions;  but  this  precise  species  of  evidence  is  not 
absolutely  required,  and  it  will  be  sufficient  if,  by  any  means  of 
proof,  a  knowledge  and  approval  of  the  contents  of  the  will  can  be 
brouarht  home  to  the  deceased.^ 


§  161.  Secondly,  where  proof  can  be  furnished  that,  prior  to  §  131 
the  execution  of  a  will  by  a  competent  testator,  it  was  either  read 
over  to  him,  or  otherwise  brought  specially  to  his  notice,  the 
Probate  Division  of  the  High  Court,  in  the  absence  of  fraud,  will 
not  only  infer,  prima  facie,  that  he  approved  of  the  contents,  but 
will  recognise  a  conclusive  presumption  to  that  effect.  No  matter 
what  evidence  may  be  forthcoming  to  establish  a  case  of  obvious 
error,  and  to  show  that  some  passage  has  crept  into  the  instrument 
by  the  sheer  mistake  of  the  draughtsman,  the  judge  will  turn  a 
deaf  ear  to  all  such  testimony,  and,  rejoicing  in  the  safe  inflexibi- 
lity of  a  Procrustean  rule,  will  perpetrate  the  grossest  injustice 
under  the  protection  of  law.^  On  a  recent  occasion  it  Avas  sought 
to  apply  this  unjust  doctrine  to  a  case,  where  the  jury  had  found  as 
facts,  not  only  that  a  word  had  been  introduced  into  the  will  by  a 
blunder,  but  that  the  clauses  in  which  it  appeared  had  never  been 
brought  to  the  notice  of  the  testator  in  any  way.  The  court,  how- 
ever, under  these  circumstances,  very  wisely  refused  to  be  carried 
any  further  down  the  facile  descent,  and  directed  that  the  obnoxious 


1  Browning  ?;.  Budd,  6  Moo.  P.  C.  E.  430;  Fulton  v.  Andrew,  7  Law  Eep., 
H.  L.  448;  44  L.  J.,  Pr.  &  Mat.  17,  S.  C. 

''  Barry  v.  Eutlin,  1  Curt.  638—641 ;  2  Moo.  P.  C.  R.  482—485,  S.  C. ; 
Mitchell  V.  Thomas,  6  Moo.  P.  C.  R.  137.  See  further  on  this  subject,  1  Will, 
on  Ex.  97,  311,  312;  and  Atter  v.  Atkinson,  1  Law  Rep.,  P.  &  D.  665. 

^  Guardhouse  v.  Blackburn,  1  Law  Rep.,  P.  &  D.  109,  per  Ld.  Penzance; 
35  L.  J.,  Pr.  &  Mat.  116,  S.  C. ;  Harter  v.  Harter,  42  L.  J.,  Pr.  &  Mat.  1,  per 
Sir  J.  Hannen;  3  Law  Rep.,  P.  &  D.  11,  S.  C.  Sed  qu.,  for  the  judicial 
reasoning  in  these  cases  is  not  so  logical  as  might  fairly  be  expected.  See 
In  re  Oswald,  43  L.  J.,  Pr.  &  Mat  24;  3  Law  Rep.,  P.  &  D.  162,  S.  C. 

(3045) 


180  PRESUMPTIONS  RESPECTING  ALTERATIONS  IN  WILLS.    [PABT  I. 

expression  should  be   struck   out.  of    the    instrument  wherever  it 
occurred.' 


§  162.  Thirdly,  when  several  sheets  of  paper,  constituting  a  ?  132 
connected  disposal  of  property,  are  found  together,  the  last  only- 
being  duly  signed  and  attested  as  a  will,  the  court  in  the  absence 
of  direct  proof,  and  even  in  spite  of  partial  inconsistencies  in  some 
of  the  provisions,  will  presume  that  each  of  the  sheets  so  found 
formed  a  part  of  the  will  at  the  time  of  its  execution." 

§  163.  Fourthly,  in  favour  of  attestations  to  wills  the  presump-  9,  133 
tion  of  law  is,  that  if  the  testator  might  have  seen,  he  did  see, 
the  witnesses  subscribe  their  names  ;^  and  the  fact  of  his  having 
been  in  the  same  room  with  them  is  prima  facie  evidence  of  their 
attestation  in  his  presence,  as  an  attestation  not  made  in  the  same 
room  is  prima  facie  not  made  in  his  presence.* 

§  164.  Fifthly,  in  the  absence  of  any  evidence  to  the  contrary,  ^  134 
the  law  presumes  that  all  alterations,  interlineations,  or  erasures, 
which  may  appear  on  the  face  of  a  will,  were  made  after  its 
execution,^  and  even  after  the  ^execution  of  any  codicils  thereto,^ 
and  consequently  the  Probate  Division  of  the  High  Court  will,  in 
a  case  of  unexplained  alteration  or  interlineation,'  or  erasure,  grant 
probate  of  the  will  in  its  original  form.^     This  presumption,  how- 

'  jVIorrell  v.  Morrell,  L.  R.,  7  Pr.  D.  68;  51  L.  J.,  Pr.  &  Mat.  49,  S.  C. 

^  Marsh  v.  Marsh,  1  Swab.  &  Trist.  528;  Gregory  v.  Queen's  Proctor,  4  Ec, 
•&  Mar.  Cas.  620;  Eees  v.  Kees,  3  Law  Eep.,  P.  &  D.  84.  See,  also,  In  re 
Cattrall,  3  Swab.  &  Trist.  419. 

=*  Todd  V.  Ld.  Winchelsea,  2  C.  &  P.  488;  ]M.  &  M.  12,  S.  C,  per  Abbott. 
C.  J. ;    Doe  v.  Manifold,  1  M.  &  Sel.  294.     See  post,  |  1054. 

*  Neil  V.  Neil,  1  Leigh,  R.  6,  10—21. 

5  Simmonds  v.  Rudall,  1  Sim.  N.  S.  115,  136,  1.37;  Doe  v.  Catomore,  16 
Q.  P..  745;  Doe  v.  Palmer,  17  Q.  B.  747;  In  re  Stone  James,  1  Swal).  &  Trist. 
238;  Williams  v.  Ashton,  1  Johns.  &  Hem.  115. 

^  Lushington  v.  Onslow,  6  Ec.  &  Mar.  Cas.  183,  188,  per  Sir  IT.  Fust.  See 
also  Christmas  v.  Whinyates,  32  L.  J.,  Pr.  &  Mat.  73;  3  Swab.  &  Trist.  81, 
S.  C. 

'  In  re  White,  30  L.  J.,  Pr.  &  Mat.  55.  But  see  in  re  Cadge,  37  L.  J.,  Pr. 
&  Mat.  15.    1  Law  Rep.,  P.  &  D.  543,  S.  C. 

^  Gann  v.  Gregory,  22  L.  J.,  Ch.  1059,  per  Stuart  V.-C;  Cooper  r.  Bockett, 
4   Moo.  P.  C.  R.  419;  4  Ec.  &   Mar.  Cas.  685,  S.  C;   Greville  v.  Tylee,  7  Moo. 

(3046) 


CHAP,  v.]    PRESUMPTIONS  RESPECTING  REVOCATION  OF  WILLS.  181 

ever, — which  is  contrary  to  that  which  prevails  with  respect  to  i 
deeds/  resolutions,  and  other  official  documents,^ — may  be  rebutted  i 
by  slight  affirmative  evidence,^  and  it  will  not  apply  to  the  filling  up 
of  blanks;  and  therefore,  where  a  testator  gave  instructions  that 
his  will  should  be  prepared  with  blanks  for  the  amount  of  the 
legacies,  and  the  will  was  found  after  his  death  regularly  executed, 
with  the  amounts  filled  up  in  his  own  handwriting,  the  court  pre- 
sumed, in  the  absence  of  all  evidence  on  the  subject,  that  the 
blanks  were  filled  up  before  the  will  was  signed,  for  otherwise  the 
execytion  would  have  been  a  mere  idle  ceremony.* 

§  165.  Sixthhj,  if  a  will,  traced  to  the  possession  of  the  testator,  I  1-^5 
and  last  seen  in  his  custody,  be  not  forthcoming  on  his  death,  the 
law,  under  ordinary  circumstances,  presumes  that  it  has  been 
destroyed  by  himself,  animo  cancellandi;  and  this  presumption, 
which  is  obviously  founded  on  good  sense,  must  prevail,  unless 
there  be  sufficient  evidence  to  rebut  it.^  The  declarations  of  the 
testator,  however,  whether  written  or  oral,  and  whether  made  before 
or   at  or  after  ^  the  execution  of  the  instrument,  furnish,  in  cases 

P.    C.    K.   .320,   328;  In  re  Hardy,  30  L.    J.,  Pr.  &  Mat.  142.     See   Rules  for 
Reg.  ofCt.  ofProb.  iu  nou-coutentious  business,  Nos.  8,  9,  10. 

'  Simmonds  v.  Rudall,  1  Sim.  N.  S.  115,  136,  137;  Doe  v.  Catomore,  IG 
Q.  B.  745;  20  L.  J.,  Q.  B.  728,  S.  C. 

2  Steevens's  Hospital  v.  Dyas,  15  Ir.  Eq.  R.,  X.  S.  405,  420. 

^  See  Dench  v.  Dench,  46  L.  J.,  P.  D.  &  A.  13;  L.  R.,  2  P.  D.  60,  S,  C; 
In  re  Duflfy,  I.  R.,  5  Eq.  506;  and  In  re  Sykes,-42  L.  J.,  Pr.  &  Mat.  17;  3 
Law  Rep.,  P.  &  D.  26,  S.  C;  Moore  v.  Moore,  I.  R.,  G  Eq.  166.  The  pre- 
sumption, moreover,  lias  been  altogether  set  at  naught  in  the  case  of  a  will 
made  by  an  officer  in  actual  military  service.  In  re  Farquharson  r.  Tweedale, 
44  L.  J.,  Pr.  &  Mat.  35.     Sed  qu. 

*  Birch  V.  Birch,  6  Ec.  &  Mar.  Cas.  581,  per  Sir  H.  Fust;  Greville  v.  Tylee, 
7  Moo.  P.  C.  R.  327. 

^  Sugden  v.  Ld.  St.  Leonards,  45  L.  J.,  P.  D.  &  A.  1;  S.  C.  id.  49,  in  Ct. 
of  App.;  L.  R.,  1  P.  D.  154,  S.  C;  Welch  v.  Phillips,  1  Moo.  P.  C.  R.  299,  302, 
per  Parke,  B.;  Finch  v.  Finch,  36  L.  J.,  Pr.  &  Mat.  78;  1  Law  Rep.,  P.  &  D. 
371,  S.  C;  Johnson  v.  Lyford,  37  L.  J.,  Pr.  &  Mat.  Qo;  1  Law  Rep.,  P.  &  D. 
546,  S.  C;  Podmore  v.  Whatton,  3  Swab.  &  Trist.  449;  33  L.  J.,  Pr.  &  ]Mat. 
143,  S.  C;  Dickinson  v.  Stidolph,  11  Com.  B.,  N.  S.  341,  357;  Brown  r.  Brown, 
27  L.  J.,  Q.  B.  173;  8  E.  &  B.  876,  S.  C;  In  re  Brown,  27  L.  J.,  Pr.  &  Mat. 
20;  1  Swab.  &  Trist.  32,  S.  C. ;  Wood  v.  Wood,  1  Law  Rep.,  P.  &  D.  309; 
Cutto  V.  Gilbert,  9  Moo   P.  C.  R.  143,  per  Dr.  Lushington. 

«  Sugden  v.  Ld.  St.  Leonards,  L.  R.,  1  P.  D.  154;  45  L.  J.,  P.  D.  &  A.  1 
&  49,  S.  C;  overruling  Quick  v.  Quick,  33  L.  J.,  Pr.  &  Mat.  146;  2  Swab.  & 
Trist.  442,  S.  C. 

(3047) 


182  PRESUMPTIONS  RESPECTING  WILLS.  [PAET.  I. 

of  this  nature,  cogent  proof  of  his  intentions.*  In  the  event,  too, 
of  the  testator  having  become  insane  after  the  will  was  made,  the 
burthen  of  proving  that  it  was  destroyed  by  him  while  he  was  of 
sound  mind  will  lie  upon  the  party  who  sets  up  the  revocation.^ 
Again,  the  finding  of  the  will  among  the  testator's  papers,  in  which 
the  signature  has  been  cut  out,  raises  a  presumption  that  the 
mutilation  was  effected  intentionally  by  the  testator  himself;  and 
in  such  a  case  the  will  cannot  be  regarded  as  revived,  though  the 
signature  has  been  again  attached  by  gum  to  its  original  place,  and 
the  document,  when  discovered,  was  in  that  condition.^  The  revo- 
cation of  a  will  by  the  testator  was  at  one  time  considered  to  raise 
a  prima  facie,  though  by  no  means  a  conclusive,  presumption  that 
the  testator  intended  to  revoke  every  codicil  to  it,*  but  this  pre- 
sumption no  longer  prevails;  and  a  codicil,  however  dependent  it 
may  be  on  the  will,  can  now  only  be  revoked  in  one  of  the  methods 
prescribed  by  the  Wills  Act.'^ 


§  166.  Seventhly,  in  the  absence  of  any  distinct  intimation  to  ?  135 
the  contrary,  the  law  presumes  that  every  testator  considers  his 
estate  sufficient  to  answer  the  purposes  to  which  he  has  devoted 
it  by  his  will;  and  consequently,  in  the  event  of  any  deficiency 
ari.  ing  in  the  assets,  all  annuities  and  legacies  will,  prima  facie, 
be  held  to  abate  rateably.  No  doubt,  this  rule,  like  most  others 
in  the  law,  is  open  to  certain  exceptions;  but  in  all  cases  the  onus 
lies  upon  those  who  claim  priority  to  furnish  conclusive  proof,  by 
referring  to  the  language  employed,  that  the  testator  intended 
that  the  bequests  should  not  stand  on  an  equal  footing.**     Again, 

'  Whiteley  v.  King,  17  Com.  B.,  N.  S.  756;  Keen  v.  Keen,  42  L.  J.,  Pr.  & 
Mat.  Gl;  3  Law  Rep.,  P.  &.  Tt.  105,  S.  C;  Sugden  v.  Ld.  St.  Leonards,  L.  R., 
1  P.  D.  L54;  45  L.  J.,  P.  D.  &  A.  1  &  49,  S.  C.  See,  al.so,  Saundens  v.  Saun- 
ders, 6  Ec.  &  Mar.  Cas.  518;  Williams  v.  Jones,  7  id.  106;  Patten  v.  Poulton, 
1  Swab.  &  Trist.  55;  Eckersley  v.  Piatt,  1  Law  Rep.,  P.  &  D.  281. 

^  Sprigge  V.  Sprigge,  38  L.  J.,  Pr.  &  Mat.  4;  1  Law  Rep.,  P.  &  D.  608,  S.  C. 

3  Bell  f.  Folliergill,  2  Law  Rep.,  P.  &  D.  148. 

*  Grimwood  v.  Cozens,  2  Swab.  &  Trist.  364;  In  re  Dutton,  32  L.  J.,  Pr. 
&  Mat.  137;  3  Swab.  &  Trist.  66,  S.  C;  Medlycott  v.  Assheton,  2  Add.  229; 
Clogstown  V.  Walcot,  5  Ec.  &  Mar.  Cas.  523.  But  see,  In  re  Ellice,  33  L.  J., 
Pr.  &  Mat.  27;  Black  v.  Jobling,  1  Law  Rep.,  P.  &  D.  685;  38  L.  J.,  Pr.  & 
Mat.  74,  S.  C. 

^  Re  Turner,  2  Law  Rep.,  P.  &  D.  403,  per  Ld.  Penzance. 

^  Miller  r.  Huddlestone,  3  M.  «&  Gord.  513,  523,  524,  per  Ld.  Truro;  Brown 

(3048) 


CHAP,  v.]         BEQUEST  OF  ANNUITY — LEGACY  TO  EXECUTORS.  183 

property  specifically  bequeathed  or  devised  is  prima  facie  pre- 
sumed to  have  been  intended  by  the  testator  to  pass  to  the  legatee 
or  devisee  in  its  entirety  ;  and  this  presumption  will  not  be 
rebutted  by  a  codicil,  charging  certain  pecuniary  legacies  on  all 
the  testator's  estates,  both  real  and  personal.'  If,  too,  an  annuity 
be  bequeathed  by  will  for  an  indefinite  period,  the  law  will  pre- 
sume, in  the  first  instance,  that  it  was  intended  to  be  given  for  the 
life  of  the  annuitant  ;  but  this  presumption  is  liable  to  be  rebutted 
by  proof,  that  the  testator  has  used  words  which  indicate  an  inten- 
tion that  the  annuity  should  be  granted,  either  in  perpetuity,  or 
for  a  fixed  number  of  years.  ^ 


§  167.  When  a  legacy  is  bequeathed  to  a  person,  who  is  also  §  issa 
named  in  the  will  as  an  executor,  the  law  presumes,  prima  facie, 
that  it  was  given  to  him  in  that  character  ;  and  consequently,  if 
he  declines  to  accept  the  office,  he  must  relinquish  all  claim  to  the 
legacy,  unless  he  can  show  from  the  language  employed  that  the 
bequest  was  made  to  him  independently  of  his  character  of  execu- 
tor, and  solely  as  a  token  of  personal  regard."  When,  under  the 
terms  of  a  will,  the  consent  of  executors  or  trustees  is  rendered 
necessary  to  the  validity  of  any  act,  the  law  presumes,  in  the 
absence  of  any  express  direction  on  the  subject,  that  this  dis- 
cretionary power  should  be  exercised  by  those  only  who  undertake 
the  duties  of  the  office.*     An  executor  who  has  renounced,  or  a 


V.    Brown,    1    Keen,    275,  277;   Thwaites   v.    Foreman,   1  Coll.  409,  414  ;  Ld* 
Dunboyne  v.  Brander,  18  Beav.  313. 

'■  Conrou  v.  Conron,  7  H.  of  L.  Cas.  168  ;  Campbell  v.  M'Conaghey,  I.  E., 
6  Eq,  20. 

2  Yates  V.  Maddan,  3  M.  &  Gord.  532  ;  Lett  v.  Randall,  2  Sm.  &  Giff.  83  ; 
2  DeGex,  F.  &  J.  388,  S.  C.  ;  Stokes  v.  Heron,  12  CI.  &  Fin.  161  ;  Potter  v. 
Baker,  13  Beav.  273  ;  Blewitt  v.  Roberts,  Cr.  &  Ph.  274  ;  Hill  v.  Potts,  31 
L.  J.,  Ch.  380,  per  Wood,  V.-C.  ;  S.  C.  nom.  Hill  v.  Ratley,  2  Johns.  &  Hem. 
634  ;  Sullivan  v.  Galbraith,  I.  R.,  4  Eq.  582. 

'  Stackpole  v.  Howell,  13  Ves.  421  ;  In  re  Reeve's  Trusts,  L.  R.,  4  Ch.  D.  841, 
per  Jessel,  M.  R.  ,  Harrison  v.  Rowley,  4  Ves.  216  ;  Reed  v.  Devaynes,  2  Cox, 
Ch.  R.  285  ;  3  Br.  C.  C.  95,  S  C.  ;  Dix  v.  Reed,  1  Sim.  &  St.  239  ;  Piggott  v. 
Green,  6  Sim.  72  ;  Jewis  v.  Lawrence,  8  Law  Rep.,  Eq.  345  ;  In  re  Banbury's 
Trust's,  I.  R.,  10  Eq.  408  ;  In  re  Reeve's  Trusts,  46  L.  J.,  Ch.  412,  per  Jessel, 
M.  R.  ;  L.  R.,  4  Ch.  D.  841,  S.  C. 

*  White  V.  M'Dermott,  I.  R.,  7  C.  L.  1. 

(3049) 


184  EMBLEMENTS — MEANING  OF  "  CHILDREN."  [PART  I. 

trustee  who  has  disclaimed,  has  obviously  no  right  to  interfere  in 
the  matter  ;  and  even  without  any  formal  renunciation  or  disclaimer 
an  executor  or  trustee,  who  simply  declines  to  accept  the  office  or  to 
act  in  the  trusts,  will  thereby  relieve  the  parties  interested  from 
the  responsibility  of  obtaining  his  consent.'  When  executors  are 
appointed  by  will,  and  the  residuary  estate  is  undisposed  of,  the 
law  presumes,  in  the  absence  of  evidence  of  an  intention  to  the 
contrary,  that  the  executors  are  trustees  for  the  next  of  kin  ;  "  but 
if  there  be  no  next  of  kin,  as  where  the  testator  is  illegitimate,  the 
presumption  then  is,  that  the  executors  may  retain  the  property  for 
their  own  use  instead  of  its  becoming  forfeited  to  the  Crown. ^  On 
the  subject  of  emblements,  which  is  the  old  technical  term,  "  ein- 
blacence  de  blet,^^  for  the  profits  of  the  growing  crop, — the  courts 
recognise  a  very  capricious  presumption  ;  *  for  although  the  per- 
sonal representatives  of  a  man  dying  seised  in  fee  of  land  are 
entitled  to  the  emblements  in  preference  to  the  heir,  the  law 
presuiT'es,  in  the  event  of  a  devise  of  the  land,  that  the  testator 
intended  them  to  pass  to  the  devisee.^  This  presumption  may  of 
course  be  rebutted  by  a  specific  bequest  of  the  growing  crops,  or 
"  farming  stock,"  ^  to  another  party  ;  but  the  title  of  the  devisee  to 
them  will  not,  it  seems,  be  ousted  by  a  mere  disposition  of  all  the 
testator's  personal  estate.' 

§  168.  When  the  word  "children"  is  used  in  a  will,  the  law 
presumes,  prima  facie, — as  it  does  when  the  same  word  is  employed 
in  the  Statute  of  Distributions,* — that  the  term  is  limited  to  such 
children  as  are  legitimate  according  to  the  law  of  England  ;  and  so 
strong  is  this  presumption  that  it  will  be  regarded  as  conclusive, 
unless  there  be  something  in  the  will  itself  to  show  clearly  an  in- 


1  White  r.  M'Dermott,  I.  K.,  7  C.  L.  1.  ^  jl  G.  4  &  1  W.  4,  c.  40. 

3  In  re  Knowles,  49  L.  J.,  Ch.  625,  per  Malins,  V.-C. 

*  West  V.  IVIoore,  8  East,  343,  per  Ld.  Ellenborough. 

5  Cooper  r.  Woolfitt,  26  L.  J.,  Ex.   310. 

«  Evans  v.  Williamson,  50  L.  J.,  Ch.  197,  per  Jessel,  M.  R.  :  L.  R..  17  Ch.  D. 
696,  S.  C.  '  Cooper V.  Woolfitt,  26  L.  J.,  Ex.  310. 

«  22  &  23  Car.  2,  c.  10  ;  In  re  Goodman's  Trusts,  L.  R.,  14  Ch.  D.  619,  per 
Jessel,  M.  R.  ;  49  L.  J.,  Ch.  805,  S.  C.  But  this  case  has  been  reversed  by 
Cotton  and  .Tames,  Ld.  Js.,  in  Ct.  of  Ap.,  diss.  Lush,  L.  J.,  50  L.  J.,  Ch.  425  ; 
L.  R.,  17  Ch.  D.  226,  S.  C.     Therefore  qu. 

(3050) 


CHAP,  v.]  MEANING  OF   TERMS  USED  IN  WILLS.  185 

tention  on  the  part  of  the  testator  to  provide  for  natural  children,* 
In  this  last  event,  such  a  child,  though  en  ventre  sa  mere  at  the 
date  of  the  will,  has  been  held  to  be  included  in  the  term."  Again, 
the  word  "cousins,"  when  used  in  a  will,  has  been  interpreted  to 
mean  first  cousins  only;  "first  cousins"  have  prima  facie  been 
defined  as  cousins  germau  or  persons  having  the  same  grandfathers; 
and  "  second  cousins  "  have  been  held  to  mean  persons  having 
the  same  great-grandfathers.'*  Neither  of  these  last  two  terms  will, 
in  the  absence  of  an  evident  intention,*  be  construed  as  including 
the  children  or  grandchildren  of  first  cousins,  who  are  commonly 
called  first  cousins  once  or  twice  removed.^  So,  when  a  testator 
uses  the  word  "family"  he  will  be  presumed,  prima  facie,  to 
mean  the  children,  if  any,  of  the  person  whose  family  is  spoken  of, 
and  there  must  be  a  special  context  to  give  the  word  a  difPerent 
meaning.*^  So,  also,  the  word  "  moneys,"  when  used  in  a  testa- 
mentary instrument,  will,  in  the  absence  of  anything  in  the  instru- 
ment to  indicate  a  different  intention,^  be  confined  to  ready  money 
actually  in  hand;^  and  the  word  "furniture  " — unless  under  special 
circumstances" — will  not  include  tenant's  fixtures.'"  Neither  will 
the  term  "debentures"  include  "debenture  stock.""  Again,  the 
term  "unmarried  "  will,  unless  otherwise  explained  by  the  context, 
be  held  to  mean  "  without  ever  having  been  married,"'^ 

1  Doriu  V.  Dorin,  7  Law  Eep.,  H.  L.  568;  45  L.  J.,  Ch.  652,  S.  C,  per  Dom. 
Proc;  Ellis  v.  Honstoun,  L.  E.,  10  Ch.  D.,  236;  Boyes  v.  Bedale,  1  Hem.  &  M. 
798;  Megson?j.  Hindle,  L.  R.,  15  Ch.  D.  198,  per.Ct.  of  App.  See  Laker  v. 
Horclern,  L.  E.,  1  Ch.  D.  644. 

''  Crook  V.  Hill,  L.  R.,  3  Ch.  D.  773,  per  Hall,  V.-C. 

3  Ee  Parker,  Bentham  v.  Wilson,  L.  E.,  15  Ch.  D.  528,  per  Jessel,  M.  R.;  S. 
C.  affd.  on  app.,  L.  E.,  17  Ch.  D.  262;  and  50  L.  J.,  Ch.  639. 

*  Ee  Bonner,  Tucker  v.  Good,  L.  E.,  19  Ch.  D.  201,  per  Chitty,  J.,  51  L.  J., 
Ch.  83,  S.  C. 

*  Ee  Parker,  Bentham  v.  Wilson,  L.  E.,  15  Ch.  D.  528,  per  Jessel,  M.  E.;  S. 
C.  affd.  on  app.  L.  E.,  17  Ch.  D.  262;  and  50  L.  J.,  Ch.  639. 

«  Pigg  V.  Clarke,  45  L.  J.,  Ch.  849,  per  Jessel,  M.  E. 

^  See  Ee  Cadogan,  Cadogan  v.  Palagi,  L.  E.,  25  Ch.  D.  154;  53  L.  J.,  Ch. 
207,  S.  C. 

«  Langdale  v.  Whitfield,  4  Kay  &  J.  426,  432,  per  Wood,  V.-C;  Williams  v. 
Williams,  L.  E.,  8  Ch.  D.,  789,  793,  per  Baggallay,  L.  J.;  47  L.  J.,  Ch.  857, 
858,  S.  C. 

»  Paton  V.  Sheppard,  10.    Sim.  186. 

'°  Finney  v.  Grice,  L.  E.,  10  Ch.  D.  13,  per  Jessel,  M.  E. 

"  Lane,  in  re,  L.  E.,  14  Ch.  D.  856. 

1'^  Dalrymple  v.  Hall,  L.  E.,  16  Ch.  D.  715;  50  L.  J.,  Ch.  302,  S.  C. 

(3051) 


186  PRESUMPTIONS   RESPECTING  DATE  OF  DOCUMENTS.      [PART  I. 

§  109.  It  may  be  laid  down  as  a  general  prima  facie  presump-  |  137 
tion,  that  all  documents  were  made  on  the  day  they  bear  date.^ 
This  presumption  prevails,  whether  the  document  be  a  modern  or 
ancient  deed,"  a  bill  of  exchange  or  promissory  note,^  an  account,* 
or  even  a  letter;^  and,  that,  too,  whether  it  be  written  by  a 
party  to  the  suit  or  not.'^  The  rule,  however,  has  been  very 
reluctantly  recognised,  at  least  by  some  distinguished  judges,' 
and  it  is  certainly  subject  to  two  exceptions}  The  first  is,  where, 
in  order  to  prove  a  petitioning  creditor's  debt,  an  instrument  is  put 
in  signed  by  the  bankrupt,  which  bears  date  before  the  act  of 
banki'uptcy.  In  these  cases,  as  the  efiect  of  a  proceeding  in 
bankruptcy  is  retrospective,"  and  its  object  is  to  invalidate  all 
transactions  which  have  taken  place  between  the  act  of  bank- 
ruptcy and  the  time  when  the  adjudication  takes  effect;  and  as, 
moreover,  it  is  the  interest  of  the  petitioning  creditor  to  support 
the  adjudication,  the  court  has  felt  a  reasonable  jealousy  of  a 
collusion  between  him  and  the  bankrupt,  and  has,  accordingly, 
required  that  some  independent  proof  of  the  existence  of  the 
instrument,  previous  to  the  act  of  bankruptcy,  should  be  given 
in  evidence,  beyond  the  mere  date  apparent  on  its  face.'"  The 
second  exception  is,  where,  in  petitions  for  damages  on  the  ground 


1  Malpas  V.  Clements,  19  L.  J.,  Q.  B.  435;  Fotez  v.  Glossop,  2  Ex.  R.  191; 
Morgan  v.  Whitmore,  6  Ex.  R.  716. 

2  Anderson  v.  Weston,  6  Bing.  N.  C.  300,  301 ;  Davies  v.  Lowndes,  7  Scott, 
N.  S.  214;  6  M.  &  Gr.  527,  528,  S.  C;  Doe  v.  Stillwell,  8  A.  &  B.  645;  Smith  v. 
Battens,  1  M.  &  Rob.  341. 

3  45&4G  V.,0.  Gl,  ?  3;  Anderson  v.  Weston,  6  Bing.  N.  C.  296;  8  Scott, 
583,  S.  C. ;  Smith  v.  Battens,  1  M.  &  Rob.  341. 

*  Sinclair  v.  Baggaley,  4  M:  &  W.  312. 

^  Potez  V.  Glossop,  2  Ex.  R.  191;  Lewis  v.  Simpson,  and  Angell  v.  Wor.sley, 
id.  196,  n.;  Hunt  v.  Massey,  5  B.  &  Ad.  902;  Goodtitle  t'.Millburn,  2  M.  &  W. 
853. 

•5  Potez  r.  Glossop,  2  Ex.  R.  191 ;  Anderson  v.  Weston,  6  Bing.  N.  C.  301,  per 
Bosanquet,  J. 

'  Potez  V.  Glossop,  2  Ex.  R.  191.  See,  also,  Butler  v.  Mountgarret,  7  H.  of 
L.  Cas.  646,  647,  per  Ld.  Wensleydale. 

"  See  also,  re  Adamson,  L.  R.,  3  P.  &  D.  253. 

9  46  &  47  v.,  c.  .52,  I  43. 

'"  Anderson  v.  Weston,  6  Bing.  N.  C.  301,  302,  per  Bosanquet,  J.;  Sinclair  v. 
Baggaley,  4  M.  &.  W.  318,  per  Ld.  Abinger;  Hoare  r.  Coryton,  4  Taunt.  560; 
Wright  V.  Lainson,  2  M.  &  W.  739,  743.  These  cases  overrule  Taylor  v.  Kin- 
lock,  1  Stark.  R.  175. 

(3052) 


CHAP,  v.]  DATE  OF  DOCUMENTS — ACTING  IN  OFFICES.  187 

of  adultery,'  letters  are  ptit  in  evidence  to  show  the  terms  on 
which  Ihe  husband  and  wife  were  living  before  the  seduction  ;  and 
here,  in  order  to  avoid  the  obvious  danger  of  collusion,  it  has  been 
deemed  necessary  that  some  independent  proof  should  be  given 
that  the  letters  were  written  at  the  time  they  bear  date.^  It  may 
be  questionable  whether  the  courts  would  not  now  recognise  a 
third  exception  to  the  rule  in  those  cases,  where  indorsements 
made  by  a  deceased  obligee  on  a  bond,  acknowledging  the  receipt 
of  interest,  are  tendered  in  evidence  by  his  assignee,  with  the  view 
of  defeating  a  plea  of  the  Statute  of  Limitations,  set  up  by  the 
obligor.^ 


§  170.  Subject  to  the  above  exceptions,  the  rule  in  question  is  §  138 
founded  on  common  reason ;  for  in  the  very  great  nJajority  of 
cases,  documents  are  actually  written  on  the  day  they  bear  date. 
The  doctrine,  however,  must  not  be  pushed  too  far ;  and  in 
applying  it  to  bills  of  exchange,  it  must  be  borne  in  mind  that 
the  date  of  the  bill,  though  prima  facie  evidence  of  the  day  when 
it  was  drawn,  is  no  proof  that  it  was  accepted  at  the  same  time. 
The  most  that  the  law  will  presume  is  that  a  bill  was  accepted 
before  its  maturity,  and  within  a  reasonable  time  after  it  was 
drawn  ;  and  it  recognises  that  presumption,  because  in  all  ordinary 
transactions  such  a  course  of  business  would  be  pursued.* 

§  171.  The  fact  that  a  person  has  acted  in  an  official  capacity   |  139 
is  also  presumptive  evidence  of  his  due   appointment  to  the  office, 
because  it  cannot  be  supposed  that  any  man  would  venture  to 
intrvide  himself  into  a  public  situation  which  he  was  not  autho- 
rised to  fill.     This  rule  has  been  expressly  adopted  by  the  legis- 


1  See  20  &  21  V.,  c.  85,  ^  33. 

'^  Trelawnej'  v.  Coleman,  2  Stark.  R.  193,  per  Holroyd,  J. ;  Houliston  v. 
Smyth,  2  C.  &  P.  24,  per  Best,  C.  J. 

*  See  this  question  discussed,  post,  ^l  690 — 696. 

*  Roberts  v.  Bethell,  12  Com.  B.  778,  questioning  Israel  v.  Argent, 
and  Blyth  v.  Archbold,  cited  in  Pears.  Chit.  PI.  330,  n.  h.  See  45  &  46  V., 
c.  61.  I  13. 

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188  PRESUMPTIONS  FROM  ACTING  IN  PUBLIC  OFFICES.       [PART  I. 

lecture  in  the  statutes  relating  to  the  excise'  and  customs,^  and  at 
common  law  it  has  been  held  applicable  to  lords  of  the  treasury,' 
masters  in  chancery,  though  exercising  special  powers,^  deputy 
county  court  judges,^  commissioners  for  taking  affidavits,"  surro- 
gates,' sheriffs,*^  under- sherifls,'^  justices  of  the  peace,'"  constables," 
though  appointed  by  commissioners  under  a  local  public  Act,'^ 
trustees  under  a  turnpike  Act,'^  churchwardens,'*  overseers,'^  vestry- 
clerks,'"  trustees  empowered  to  raise  church-rates  under  a  local 
Act,"  weigh-masters  of  market  towns,'^  attested  soldiers  engaged  in 

^  7  &  8  G.  4,  c.  53,  ^  17,  enacts,  that  ",  if  upon  the  trial  of  any  indictment, 
information,  action,  suit,  or  prosecution  whatsoever,  or  in  any  other  legal  or 
judicial  proceeding,  any  question  shall  be  made,  or  any  doubt  or  dispute  shall 
arise,  touching  or  concerning  the  keeping  of  any  office  of  excise,  or  whether 
any  person  is  or  was  a  commissioner  or  assistant  commissioner  of  excise,  or 
a  collector  or  other  officer  of  excise,  or  commissioned  or  appointed  to  act  as 
such,  evidence  of  the  actual  keeping  of  such  office  of  excise,  or  that  such 
I'terson  is,  or  at  the  time  in  question  was,  reputed  to  be  such  commissioner 
or  assistant  commissioner,  or  such  collector  or  other  officer,  or  does  or  did  then 
act  as  such  commissioner  or  assistant  commissioner,  or  as  such  collector  or  other 
officer  so  commissioned  and  ai^pointed  (as  the  case  may  require),  shall  in  every 
such  case  be  admitted  and  deemed  and  taken  to  be  respectively  sufficient  and 
legal  proof  of  such  lacts  respectively,  without  producing  or  proving  the  parti- 
cular commission,  appointment  or  other  authority,  whereby  such'  person  is  or 
was  commissioned  or  appointed  to  be  such  commissioner  or  assistant  commis- 
sioner, or  such  collector  or  other  officer  as  aforesaid,  unless  by  other  evidence 
the  contrary  be  made  to  apjiear ;  any  law,  custom,  or  usage  to  the  contrary 
therefore  notwithstanding. ' ' 

^  39  &  40  Y.,  c.  36,  §  261,  enacts,  that  "if  upon  any  trial  a  question  shall 
arise  whether  any  person  is  an  officer  of  the  army,  navy,  or  marines,  or  coasts 
guard  duly  employed  for  the  prevention  of  smuggling,  or  an  officer  of  cuHtoms 
or  excise,  his  own  evidence  thereof,  or  other  evidence  of  his  having  acted  as 
such,  shall  be  deemed  sufficient,  without  production  of  his  commission  or 
deputation.  ^  R.  r.  Jones,  2  Camp.  131,  per  Ld.  Ellenborough. 

*  Marshall  v.  Lamb,  5  Q.  B.  115. 

5  R.  V.  Roberts,  14  Cox,  101,  by  Ct.  of  Crim.  App. 

6  R.  V.  Howard,  1  M.  &  Rob.  187,  per  Patteson,  J.;  R.  v.  Newton,  1  C.  & 
Kir.  480.  ^  R.  v.  Verelst,  3  Camp.  432,  per  Ld.  Ellenborough. 

*  Bunbury  v.  Matthews,  1  C.  &.  Kir.  382,  per  Parke,  B. 

9  Doe  V.  Brawn,  5  B.  <fe  A.  243.  See  Plumer  v.  Brisco,  11  Q.  B.  46  ; 
Robinson  v.  Collingwood,  17  Com.  B.,  X.  S.  777. 

i»  Berryman  r.  Wise,  4  T.  R   366,  per  Buller,  J.  ^^  Id. 

12  Butler  r.  Ford,  1  C.  &  M.  662.  '^  Pritchard  v.  Walker,  3  C.  &  P.  212. 

"  R.  V.  Mitchell,  per  Abbott.  C.  J.,  cited  2  St.  Ev.  307,  n.  r. 

15  Doe  V.  Barnes,  8  Q.  B.  1037.  '"  M'Gahey  v.  Alston,  2  M.  &  W.  206. 

"  R.  V.  Murphy,  8  C.  &  P.  310,  per  Coleridge,  J. 

1^  M'Mahon  v.  Lennard.  6  H.  of  L.  Cas.  970;  Dexter  v.  Hayes,  11  Ir.  Law 
R.,  N.  S.  106  ;  S.  C.  in  Ex.  Ch.  nom.  Hayes  v.  Dexter,  13  id.  22;  M'Mahon  v. 
Ellis,  14  id.  499,  509. 

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CHAP,  v.]         ACTING  IN  PUBLIC  OFFICES — PARTNERSHIP,  189 

the  recruiting  service,'  and,  indeed,  it  extends  to  all  public  officers.'' 
Moreover,  no  distinction  is  recognised,  though  the  appointment 
must  necessarily  be  in  writing,^  or  even  under  seal,*  or  though  the 
action  be  brought  in  the  name  of  the  officer,^  or  thoiigh  the 
title  be  directly  put  in  issue  by  the  pleading,*^  or  though  the  pro- 
ceedings be  criminal,  and  in  the  highest  degree  penal,  as,  for  in- 
stance, a  trial  for  the  murder  of  a  constable  in  the  execution  of  his 
duty.'  Neither  will  any  exception  to  this  rule  be  allowed,  even  in 
cases  where  parties  are  indicted  for  offences  committed  by  them  in 
their  character  of  public  officers.  Thus,  if  a  person  employed  by  ■ 
the  Post-office  be  indicted  for  stealing  or  embezzling  a  letter,^  his 
formal  appointment  need  not  be  proved,  but  it  will  suffice  to  show 
that  he  has  acted  in  the  capacity  charged  ;"  though,  in  an  Irish 
case,  Mr.  Justice  Crampton  appears  to  have  held  that  some  proof 
of  acting  with  the  sanction  of  the  Post-office  authorities  was 
necessary.'" 

§  172.  The  same  presumption  prevails  with  respect  to  certain    ?  140 
relations  of   life.     Thus,  the  relations  of  landlord  and  tenant,  of 
partnership,  and  of  master  and  servant,  are  frequently  presumed 
from  the  conduct  of  the  parties  being  more  consistent  with  that 

1  Walton  V.  Gavin,  16  Q.  B.  48 

2  M'Gahey  v.  Alston,  2  M.  &  W.  211,  per  Parke,  B  ;  Marshall  v.  Lamb,  5 
Q.  B.  123,  per  Patteson,  J.  ;  Doe  v.  Young,  8  Q.  B.  63. 

'^  See  cases  cited  in  preceding  notes  to  this  section. 

*  Dexter  i'.  Hayes,  11  Ir.  Law  R.,  N.  S.  106,  119,  per  Fitzgerald,  B.,  explain- 
ing Smith  V.  Cartwright,  6  Ex.  R.  927. 

^  M'Gahey  i\  Alston,  2  M.  et  W.  206,  211  ;  M'Mahon  v.  Lennard,  6  H.  of  L. 
Cas.  970  ;  Doe  v.  Barnes,  8  Q.  B.  1037,  which  was  an  action  of  ejectment 
brought  by  parish  officers  ;  Cannell  v.  Curtis,  2  Bing.  N.  C.  228  ;  2  Scott,  379, 
S.  C.  This  last  case  was  an  action  for  libel  ;  the  declaration  averred  that  the. 
plaintiff  had  been  appointed  and  was  assistant  overseer  ;  the  plea  traversed  the 
appointment.  Tindal,  C.  J.,  intimated  a  strong  opinion  that  it  was  only 
necessary  for  the  plaintiff  to  prove  that  he  acted  as  assistant  overseer.  This 
ruling  was  cited  by  Parke,  B. ,  in  2  M.  &  W.  209. 

^  Dexter  v.  Hayes,  11  Ir.  Law  E.,  N.  S.  103  ;  S.  C.  nom.  Hayes  v.  Dexter, 
13  Ir.  Law  E.,  N.  S.  22,  per  Ex.  Ch.  ;  M'JNIahon  v.  Lennard,  6  H.  of  L.  Cas. 
1000.  '  R.  V.  Gordon,  1  Lea.  515. 

«  See  7  W.  4  &  1  v.,  c.  36,  §?  25,  26. 

^  Clay's  case,  2  East,  P.  C.  580  ;  E.  v.  Eees,  6  C.  &  P.  606,  per  Parke,  B. ; 
R.  r.  Barrett,  id.  124,  per  Littledale  and  Bosanquet,  Js.,  and  Bolland,  B.  ;  R.  v. 
Townsend,  C.  &  Marsh.  178  ;  R.  v.  Goodwin,  1  Lew.  C.  C.  100. 

^"  R.  V.  Trenwyth,  Ir.  Cir.  R.  172.     Sed  qu.  ? 

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190  PRESr^IPTIONS  AS  TO  APPRENTICESHIP — MARRIAGE.    [PART.  I. 

state  of  things  than  with  any  other.'  So,  a  presumption  in 
favour  of  the  relation  of  master  and  apprentice  has  more  than 
once  been  recognised,  from  the  fact  of  the  parties  having  acted 
towards  each  other  as  they  would  have  done  in  the  case  of  an 
apprenticeship,  though  no  direct  proof  was  given  of  the  existence 
of  any  indenture."  So,  also,  a  cogent  legal  presumption  is  raised 
in  favour  of  the  validity  of  any  marriage  which  is  shown  to  have 
been  celebrated  de  facto  f  and  this  presumption  will  not  be 
rebutted,  iu  the  case  of  a  minor  married  by  licence  in  her  father's 
lifetime,  by  the  mere  fact  of  the  mother's  name  appearing  in  the 
register  as  the  consenting  party,  and  no  evidence  being  adduced 
to  establish  the  consent  of  the  father.*  So,  if  persons  live  together 
ostensibly  as  man  and  wife  the  law  will,  in  favour  of  morality  and 
decency,  presume  that  they  are  legally  married  f  and  so  far  has 
this  presumption  been  recognised  in  Scotland,  that  even  where 
the  connexion  was  shown  to  have  commenced  in  adultery,  a  sub- 
sequent valid  marriage  has  been  inferred  from  strong  evidence 
of  habit  and  repute.*^  Two  exceptions  to  this  rule  are,  however, 
recognised  in  England  ;  for  on  an  indictment  for  bigamy,'  so  far 

1  E.  V.  Fordingbridge,  E.  B.  &  E.  685,  per  Erie,  J. 

^  E.  V.  Fordingbridge,  E.  B.  &  E.  678  ;  E.  v.  St.  Marylebone,  4  D.  & 
E.  475. 

3  Piers  V.  Piers,  2  H.  of  L.  Cas.  331;  Siehel  r.  Lambert,  15  Com.  B.,  N.  S. 
781  ;  Sastry  Velaider  r.  Sembecutty,  L.  E.,  6  App.  Cas.  364,  per  Pr.  C.  See 
Harrod  v.  Harrod,  1  K.  &  J.  4.     Also,  ante,  §  144. 

*  Harrison  v.  Corp.  of  Southampton,  22  L.  J.,  Ch.  722. 

*  Doe  V.  Fleming,  4  Bing.  266  ;  Goodman  v.  Goodman,  28  L.  J.,  Ch.  1  ; 
Collins  V.  Bishop,  48  L.  J.,  Ch.  31,  per  Malins,  V.-C.  ;  Sastry  Velaider  v.  Sembe- 
cutty, L.  E.  6.  App.  Cas.  364,  per  Pr.  C.  The  same  presumption  is  recognised  by 
the  Mahomedan  law,  Eanee  Khujooroonissar.  Mussamut  Eoushun  Jehan,  L.E., 
3  lud.  App.  291,  311 ;  and  by  the  Eoman  Dutch  Law  as  prevailing  in  Ceylon, 
Aronegary  r.  Sambonade,  50  L.  J.,  Pr.  C.  28. 

•^  The  Breadalbane  Case,  1  Law  Eep.,  H.  L.,  So.  182  ;  explaining,  or,  per- 
haps, as  some  ma^  think,  explaining  away,  Cunningham  v.  Cunningham,  2 
Dow,  483  ;  and  Lapsley  v.  Grierson,  1  H.  of  L.  Cas.  498.  See,  also,  Lyle  v. 
Ell  wood,  44  L.  J.,  Ch.  164,  per  Hall,  V.-C.  ;  19  Law  Eep.,  Eq.  98,  S.  C.  ;  De 
Thoren  v.  Att.-Gen.,  L.  E.,  1  App.  Cas.  686  ;  and  Dysart  Peer.,  L.  E.,  6  App. 
Cas.  489.  . 

'  24  &  25  v.,  c.  100,  ?  57.  See  E.  v.  Griffin,  14  Cox,  308  ;  4  L.  E.  Ir.  497, 
S.  C,  where  it  was  held  in  Ireland  by  four  judges  against  two.  that  in  a  case 
of  bigamy  a  marriage  in  accordance  with  Eoman  Catholic  rites  in  a  foreign 
State  might  be  presumed  to  be  good  without  proof  of  the  law  of  that  State. 
Sed  qu. 

(3056) 


CHAP,  v.]  CORPORATE  BODIES — PROFESSIONAL  MEN.  191 

as  the  first'  marriage  is  concerned,  and  on  a  petition  claiming 
damages  against  an  alleged  adulterer,"  an  actual  marriage  must 
be  proved,  and  even  the  proof  of  a  ceremony,  which  the  parties 
supposed  to  be  sufficient  to  constitute  the  relation  of  husband  and 
wife,  is  not  enough,  but  it  must  be  shown  to  be  sufficient  according 
to  law  for  that  purpose."  These  exceptions  rest  on  the  ground, 
that  such  proceedings,  being  of  a  penal  nature,  require  the  strictest 
proof  ;  and  a  further  reason  for  the  exception  in  cases  of  adultery- 
seems  to  be,  to  prevent  parties  from  setting  up  pretended  marriages 
for  evil  purposes.* 


§  173.  How  far  the  presumption  derivable  from  acting  applies  to  g  141 
corporate  bodies,  or  to  persons  suing  or  being  sued  as  professional 
men,  or  as  filling  particular  situations,  does  not  distinctly  appear. 
In  the  case  of  R.  v.  Langton,^  parol  evidence  that  a  limited  company 
had  acted  as  such  was  held  sufficient,  without  strict  proof  of  incor- 
poration, to  support  an  indictment,  which  charged  the  accused  with 
obtaining  the  goods  of  the  company  by  false  pretences  ;  but  here  it 
must  be  noted,  that,  by  virtue  of  §  88  of  the  statute  24  &  25  V., 
c.  96,  no  allegation  of  ownership  was  necessary  in  that  indictment. 
In  an  action  against  a  clergyman  for  non-residence.  Lord  Mansfield 
held  that  the  plaintiff  was  not  bound  to  prove  the  admission, 
institution,  and  induction  of  the  defendant,  but  that  it  was  sufficient 
to  show  that  he  had  received  tithes  and  acted  as  the  incumbent  of 
the  parish.®     So,  where  a  solicitor  brought  an  action  of  defamation 


^  The  second  marriage  need  not  be  such  as  would  be  binding  in  law,  if  it  were 
not  bigamous  ;  e.g.,  a  widower  maybe  convicted  of  bigamy,  if,  having  a  second 
wife  living,  he  has  gone  through  the  ceremony  of  marriage  with  a  niece  of  his 
first  wife;  R  v.  Allen,  1  Law  Rep.,  C.  C.  367;  41  L.  J.,  M.  C.  97;  12  Cox, 
193,  S.  C.  ;  overruling  R.  v.  Fanning,  17  Ir.  Law  R.,  N.  S.  289  ;  10  Cox,  411, 
S.  C.  2  20  &  21  v.,  c.  85,  ?  33. 

'  Catherwood  v.  Caslon,  13  M.  &  W.  261,  265,  per  Parke,  B.  ;  Burt  v.  Burt, 
29  L.  J.,  Pr.  &Mat.  133.  But  see  Rooker  v.  Rooker  &  Newton,  33  L.  J.,  Pr.  & 
Mat.  42,  per  Wilde,  J.  0.  See,  also,  Patrickson  v.  Patrickson,  35  L.  J.,  Pr.  & 
Mat.  48  ;  1  Law  Rep.,  P.  &  D.  86,  S.  C.  ;  and  cases  citfed  ante,  p.  164,  n.  ^  &  ^ 

*  Morris  v.  Miller,  4  Burr.  2057  ;  1  W.  Bl.  G32.  S.  C.  ;  Birt  v.  Barlow, 
1  Doug.  171,  174,  per  Ld.  Mansfield. 

^  13  Cox,  349,  per  Ct.  of  Cr.  App.  ;  46  L.  J.,  M.  C.  136  ;  &  L.  R.,  2  Q.  B.  D. 
296,  S.  C. 

«  Bevan  v.  Williams,  3  T.  R.  635,  n.  a. 

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192  PRESUMPTIONS  RESPECTING  PROFESSIONAL  MEN         [PAET  I. 

against  a  party  for  slandering  him  in  bis  profession,  by  threatening 
to  strike  him  off  the  rolls  for  misconduct,  he  was  allowed  to  recover 
damages,  on  proof  that  he  had  acted  as  a  solicitor,  without  showing 
his  due  admission  and  enrolment.'  So,  in  an  action  for  penalties 
under  the  Post-horse  Act,  brought  by  the  plaintiff  as  farmer- 
general,  proof  of  his  appointment  was  dispensed  with  as  against 
the  defendant,  who  had  previsusly  accounted  with  him  in  that  capa- 
city ;  ^  and, — not  to  multiply  instances, — the  same  laxity  of  evidence 
has  several  times  been  allowed  in  actions  brought  by  surgeons^ 
and  solicitors  for  their  fees,  and  by  parsons  for  their  tithes/  But 
these  cases  appear  to  rest  not  so  much,  if  indeed  at  all,  upon  the 
presumption  now  under  discussion,  as  on  the  ground  that  the 
opposite  party  had,  by  his  admissions,  either  by  word  or  deed, 
rendered  it  unnecessary  to  prove  the  actual  appointment/  In 
cases,  therefore,  where  no  such  admission  has  been  made,  the 
safer,  if  not  the  necessary,  course  will  be  to  prove  the  appointment 
in  the  ordinary  manner  ;  and,  indeed,  this  seems  consistent  with 
modern  practice  and  wuth  the  latest  decisions. 


§  174.   Thus,  in  an  action  brought  by  a  physician  for  defamation,    ^  140 
where  the  slanderous  words  denied  that  the  plaintiff  was  a  doctor  of 
medicine,  proof  that  he  had  acted  as  such,  coupled  with  evidence  of 
a  Scotch  diploma,  was  held  insufficient  to  entitle  him  to  a  verdict ; 


1  Berryman  r.  Wise,  4  T.  R.  366. 

2  Radford  v.  M'Intosh,  3  T.  R.  632. 

*  Gremaire  ?;.  Le  Clerk  Bois  Yalon,  2  Camp.  144.  In fhat  case  the  plaintift 
had  performed  several  surgical  operations  for  the  defendant,  but  it  was  con- 
tended that  he  could  not  maintain  the  action,  as  he  was  not  a  member  of  the 
College  of  Surgeons.  He  recovered  a  verdict,  and  the  court  discharged  a 
rule  to  set  it  aside,  as  no  proof  had  been  given  that  the  plaintiff  was  not  duly 
licensed.  See  Cope  v.  Rowlands,  2  M.  &  W.  160.  But  see  21  &  22  V.,  c.  90, 
§  32,  which  has  since  rendered  it  necessary  for  a  medical  man,  when  suing  for 
his  charges,  to  prove  his  due  registration.  The  same  law  noxo  applies  to 
dentists,  41  &  42  V.,  c.  33,  ?  5. 

*  Radford  v.  M'Intosh,  3  T.  R.  632  ;  Berryman  v.  Wise,  4  T.  R.  367,  per 
Buller.  J.     See  Green  v.  Jackson,  Pea.  R.  236. 

^  See  per  Chambre,  J.,  in  Smith  v.  Taylor,  1  N.  R.  210—212  ;  also  the  judg- 
ment of  Heath,  J.,  who  observes — "  It  seems  to  me  that  where  a  defendant,  in 
the  course  of  the  transaction  on  which  the  action  is  founded,  has  admitted  the 
title  by  virtue  of  which  the  plaintiff  sues,  it  amounts  to  prima  facie  evidence 
that  the  plaintiff  is  entitled  to  sue."     Id.  p.  208. 

(3058) 


CHAP,  v.]      PRESUMPTIONS  RESPECTING  PROFESSIONAL  MEN.  193 

and  Lord  Denman  observed,  "No  doubt  a  person  complaining  of  a 
slander  upon  him  in  a  particular  character,  must  prove  that  be 
possesses  that  character,  when  the  slander  does  not  admit  it.'" 
In  this  case,  however,  the  question,  whether  acting  as  a  physician 
is  sufficient  prima  facio  proof  of  being  one,  was  not  directly  decided, 
because  the  plaintiff,  not  content  with  resting  his  case  on  such 
evidence,  proceeded  to  prove  that  he  had  received  the  degree  of 
doctor  of  medicine  from  the  University  of  St.  Andrews;  and  as  the 
court  held  that  this  did  not  entitle  him  to  practice  in  England,  he 
could  not,  of  course  fall  back  upon  proof  of  practice,  on  the  legality 
of  which  he  himself  had,  by  his  evidence,  thrown  doubt. 

§  175.  In  another  action  of  slander,  brought  by  a  collector  of    ^  143 
tolls,  the  plaintiff    was  nonsuited  on  failing  to  prove  his  appoint- 
ment to  that  office,  but  it  does  not  appear  that  any  evidence  was 
offered  that  he  ever  acted  in   that  capacity;^  and  the  same  obser- 
vation applies   to  the  cases    of    Savage  v.  ,^  and    of    Cortis  v. 

Kent  Waterworks  Co.,*  in  the  former  of  which  the  plaintiff,  who 
sued  as  a  barrister,  relied,  not  on  his  practice,  but  on  the  book  of 
the  Society  of  Lincoln's-inn,  containing  the  order  for  his  call;  and 
in  the  latter,  a  party,  suing  in  the  character  of  treasurer  to  certain 
commissioners,  proved  his  appointment  to  the  office.  Still,  these 
cases,  though  not  direct  authorities,  tend  to  show  what  the  practice 
has  been,  and  so  far  support  the  view  that  the  rule  which  renders 
evidence  of  acting  prima  facie  proof  of  due  appointment,  is  confined 
to  cases  where  the  parties  occupy  a  public  situation,  or,  perhaps, 
where  the  question  of  appointment  is  not  directly  in  issue.     The 


1  Collins  V.  Carnegie,  1  A.  &  E.  695,  703;  3  N.  &  M.  703,  S.  C;  Pickford  v. 
Gutch,  8  T.  R.  305,  n.  or,  per  Buller,  J. ;  Smith  v.  Taylor,  1  N.  E.  196.  In  this 
last  case  the  court  was  equally  divided  on  the  question  whether  proof  of  acting 
as  a  physician  was  sufficient,  but  Sir  J.  Mansfield  and  Heath,  J.,  who  held  the 
affirmative,  also  thought  that  the  words  of  the  slander — "Dr.  S.  has  upset  all 
that  we  have  done,  and  die  he  (the  patient)  must" — implied  an  admission  of 
the  character,  in  which  the  plaintiff  sued.  It  must  be  remembered,  that  in 
actions  of  this  kind,  where  the  statement  of  claim  alleges  that  the  plaintiff 
holds  a  certain  office,  or  belongs  to  a  particular  profession  or  trade,  no  evidence 
is  required  to  support  this  statement,  unless  it  be  distinctly  denied  in  the 
statement  of  defence.     Eules  of  Sup.  Ct.,  1883,  Ord.  xix.,  r.  13. 

2  Sellers  v.  Till,  4  B.  &  C.  655. 

3  1  Doug.  356,  n.  4.  *  7  B.  &  C.  314. 

13  LAW  OF  EVID. — V.  I.  (3059) 


19-i  PRESUMPTIONS  FOUNDED  ON  COURSE  OF  BUSINESS.      [PART  I. 

case  of  R.  v.  Jones,'  where,  on  an  indictment  against  an  apprentice 
for  a  fraudulent  enlistment,  it  was  lield  that  the  indenture  must  be 
proved,  is  an  authority  on  neither  side  of  this  question,  for  that 
decision  rested  on  the  ground,  that  as  the  actual  and  legal  binding 
was  the  fact  which  constituted  the  gist  of  the  offence,  this  could 
only  be  proved  by  the  best  evidence. 


§  176.  Other  presumptions  of  this  class  are  founded  upon  the  ex-  g  144 
perience  of  human  conduct  in  the  ordinary  course  of  busi7iess.  Thus, 
the  receipt  of  rent  after  the  expiration  of  an  old  lease  raises  a  legal 
presumption  of  a  new  tenancy  from  year  to  year;"  though  either  the 
payer  or  the  receiver  of  such  rent  may  of  course  repel  the  presump- 
tion, by  proving  that  the  payment  was  made  under  circumstances 
inconsistent  with  it;  as,  for  example,  under  the  impression  that  the 
old  lease  was  still  subsisting.'^  So,  if  a  tenancy  from  year  to  year 
be  created,  the  law  presumes  that  it  was  intended  to  be  determin- 
able by  either  party  at  the  end  of  the  first,  as  well  as  of  any  sub- 
sequent, year,  unless  the  parties,  when  arranging  the  terms  of  the 
contract,  have  used  expressions  showing  that  they  contemplated  a 
tenancy  for  two  years  at  least*  So,  if  a  lessor,  having  mortgaged 
his  reversion,  is  permitted  by  the  mortgagee  to  continue  in  the  re- 
ceipt of  the  rent  incident  to  that  reversion,  he,  during  such  permis- 
sion, is  presumptione  juris  authorized,  if  it  should  become  necessary, 
to  sue  for  such  rent,  or  to  prevent  or  recover  damages  in  respect  of 
any  trespass  or  wrong  relative  to  the  property,  in  his  own  name 
only.^  Whether,  under  these  circumstances,  the  mortgagor  could 
realize  the  rent  by  distress  in  his  own  name,  is  not  so  clear,  but 
under  the  old  law  he  could  distrain  for  it  in  the  mortgagee's  name, 
and  as  his  bailiff.*^  The  same  implied  authority  has  also  been  re- 
cognised in  favour  of  a  party,  to  whom  the  mortgagor  had  assigned 


1  1  Lea.  174. 

2  Bishop  V.  Howard,  2  B.  &  C.  100;  3  D.  &  R.  293,  S.  C;  Doe  v.  Taniere, 
12  Q.  B.  998;  Eecles.  Commiss.  v.  Merral,  4  Law  Rep.,  Ex.  162;  38  L.  J.,  Ex. 
93,  S.  G.     In  these  last  two  cases  the  lessors  were  a  corporation. 

3  Doe  V.  CragOj  6  Com.  B.  90 

*  Doe  r.  Smariclge,  7  Q.  B.  957.  See  Brown  v.  Symons,  29  L.  J.,  C.  P.  251; 
Langton  v.  Carleton,  9  Law  Rep.,  Ex.  57;  43  L.  J.,  Ex.  54,  S.  C. 

5  36  &  37  v.,  c.  66,  §  25,  subs.  5;  40  &  41  V.,  c.  57,  §  28,  subs.  5,  Ir. 

6  Trent  v.  Hunt,  9  Ex.  R.  24,  per  Alderson,  B. 

(3060) 


CHAP,  v.]  PRESUMPTIVE  TERMS  OF  SERVICE,  195 

his  equity  of  redemption.'  Again,  in  actions  of  trover,  the  jury 
will  be  advised,  if  not  directed,  to  presume  a  conversion  from  un- 
explained evidence  of  a  demand  and  refusal." 

§  176a.  The  question  whether  the  paying  ofP  of  a  mortgage  will 
keep  it  alive  or  extinguish  it,  depends  upon  the  intention  of  the 
parties;  but  in  the  absence  of  any  express  intention,  equity  will 
raise  a  presumption  in  favour  of  that  intention,  which,  under  the 
circumstances  of  the  case,  would  be  most  advantageous  to  the  party 
paying.  Thus,  if  a  mortgage  be  paid  off  by  a  tenant  for  life,  he 
will,  as  stated  in  another  place,^  be  presumed  to  have  intended  to 
retain  the  benefit  of  it  against  the  inheritance;  but  if  the  owner  of 
an  estate  in  fee  or  in  tail  pays  off  a  charge,  a  contrary  presumption 
will  be  recognized,  and  the  mortgage  will  be  destroyed.* 

§  177.  If  a  servant  be  hired  generally,  without  any  stipulation  as  g  145 
to  time,  the  law  presumes  the  hiring  to  have  been  for  a  year,  unless 
there  are  circumstances  tending  to  rebut  this  presumption;'^  as, 
for  instance,  the  existence  of  an  agreement  to  pay  weekly  or  monthly 
wages,  coupled  with  the  absence  of  any  other  stipulation  showing  an 
intention  that  the  service  should  continue  for  a  longer  period  than  a 
week  or  a  month.^  This  rule  applies  to  domestic  as  well  as  to  farm 
servants;  but  there  is  this  difference  between  the  two  classes,  that 
the  service  of  the  former,  unlike  that  of  the  latter,^  may  be  deter- 
mined by  a  month's  warning  or  on  payment  of  a  month's  wages.* 

'  Snell  V.  Finch,  .32  L.  J.,  C.  P.  117;  13  Com.  B.,  N.  S.  651,  S.  C. 

2  Caunce  v.  Spanton,  7  M.  &  Gr.  903;  Stancliffe  v.  Hard  wick,  2  C.  M.  & 
R.  1,  12;  Thompson?).  Trail,  2  C.  &  P.  334;  6  B.  &  C.  36;  9  D.  &  R.  31, 
S.  C.  ;  Thompson  v.  Small,  1  Com.  B.  328  ;  Davies  r.  Nicholas,  7  C.  &  P. 
339 ;  Clendon  v.  Dinneford,  5  C.  &  P.  13  ;  3  St.  Ev.  1160,  1161.  See  Town 
V.  Lewis,  7  Com.  B.  608. 

^  Ante,  I  154. 

*  Adams  I'.  Angell,  L.  R.,  5  Ch.  D.  634;  Mohesh  Lai  v.  Mohunt  Bawan 
X)as,  L.  R.,  10  Ind.  Ap.  62,  70,  71. 

*  Lilley  v.  Elwin,  11  Q.  B.  742,  754. 

«  R.  V.  Worfield,  5  T.  R.  508  ;  R.  v.  St.  Andrew,  Pershore,  8  B.  &  C. 
679  ;  R.  V.  Pilkington,  5  Q.  B.  662 ;  Baxter  v.  Nurse,  6  M.  &  Gr.  939,  per 
Qoltman,  J. 

'  Beeston  v.  Collyer,  4  Bing.  313,  per  Gaselee,  J. 

**  Turner  v.  Mason,  14  M.  &  W.  116,  per  Parke,  B. ;  Beeston  &  Collyer, 
4  Bing.  313,  per  Gaselee,  J.  ;  Fawcett  v.  Cash,  5  B.  &  Ad.  908,  909. 
Ante,  ?  34. 

(3061) 


196  PRESUlVfPTIONS  RESPECTING  PAYMENTS.  [pART  I. 

In  tho  case  of  clerks,  warehousemen,  travellers,  editors,  reporters, 
actors,  ushers,  governesses,  and  the  like,  the  law  raises  no  inflexible 
presumption  of  an  indefeasible  yearly  hiring  from  the  mere  fact  of  a 
hiring  for  an  indefinite  period,  but  in  all  such  cases,  the  jury  must 
determine  the  question  for  themselves,  after  weighing  all  the  circum- 
stances proved,  and  ascertaining,  if  possible,  what  usage  prevails  in 
the  particular  business  or  employment  to  which  the  hiring  relates.' 
Again,  a  general  promise  to  marry,  is  presumed  or  interpreted  by 
the  law  to  mean  a  promise  to  marry  within  a  reasonable  time  ;  ^ 
and  a  similar  construction  is  put  upon  all  general  contracts  to  do 
certain  acts,  as  to  discharge  a  cargo,^  or  to  deliver  goods  and  the 
like,  where  the  time  of  completion  has  been  left  undefined  by  the 
parties.* 

§  178.^  Again,  as  men  are  usually  vigilant  in  guarding  their  pro- 
perty, prompt  in  asserting  their  rights,  and  diligent  in  claiming  and 
collecting  their  dues,  the  law  presumes,  where  a  bill  of  exchange,  or 
an  order  for  the  payment  of  money  or  the  delivery  of  goods  is  found 
in  the  hands  of  the  drawee,  that  he  has  paid  the  money  due  upon 
the  instrument,  and  delivered  the  goods  ordered.^  A  similar  pre- 
sumption is  raised  from  the  fact  of  a  promissory  note  being  found  in 
the  possession  of  the.  maker.'  So,  a  receipt  for  the  last  year's  or 
quarter's  rent  is  prima  facie  evidence  of  the  payment  of  all  the  rent 
previously  accrued.^  The  mere  delivery  of  money,  or  of  a  bank 
cheque,  by  one  person  to   another,   or  the  transfer  of  stock,    un- 


1  Baxter  v.  Nurse,  6  M.  &  Gr.  935 .  1  C.  &  Kir.  10  S.  C.  See  Holcroft  v. 
Barber,  1  C.  &  Kir.  4 .  Todd  v.  Kenick,  8  Ex.  E.  151  ;  Parker  v.  Ibbetson,  4 
Com.  B.,  N.  S.  348  ;  Fairman  v.  Oakford,  5  H.  &  N.  635. 

^  Potter  t'.  Deboos,  1  Stark.  R.  82,  per  Ld.  Ellenborough;  Atcbinson  ^;.  Baker, 
Pea.  Add.  Cas.  104,  per  Ld.  Kenyon. 

^  Postletbwaite  v.  Freeland,  L.  R.,  5  App.  Cas.  599,  per  Dom.  Proc.  ;  49 
L.  J.,  Ex.  630,  S.  C. 

*  Ellis  V.  Thompson,  3  M.  &  W.  45G,  per  Alderson,  R.  See  Ford  v.  Cotes- 
worth,  9  B.  &  S.  559  ;  5  Law  Rep.,  Q.  B.,  544,  S.  C. ;  10  B.  &  S.  991,  S.  C.  in 
Ex.  Ch.  5  Gj.   e^.  I  38^  in  part. 

«  Gibbon  v.  Featherstonhaugh,  1  Stark.  R.  225 ;  Egg  r.  Barnett,  3  Esp.  196  ; 
Garlock  v.  Geortner,  7  Wend.  198;  Alvord  v.  Baker,  9  Wend.  323  ;  Weidner  v. 
Schweigart,  9  Serg.  &  R.  385 ;  Shepherd  v.  Currie,  1  Stark.  E.  454. 

^  Brembridge  v.  Osborne,  1  Stark.  R.  374. 

^Gilb.  Ev.  309;  Brewer  v.  Knapp,  1  Pick.  337;  23  &  24  V.,  c.  154, 
§  47,  Ir. 

(3062) 


CHAP,  v.]      PRESUMPTIONS    RESPECTING   THE    POST    OFFICE.  197 

explained,  is  presumptive  evidence  of  the  payment  of  an  antecedent 
debt,  and  not  of  a  loan.^  So,  when  a  defendant,  having  money  of 
the  plaintiff  in  his  hands,  drew  a  cheque  upon  his  banker  in  favour 
of  the  plaintiff,  who  had  the  cheque  cashed  at  the  bank,  this  was 
held  to  be  presumptive  evidence  of  payment,  though  no  proof  was 
given  that  the  plaintiff  received  the  cheque  directly  from  the  defen- 
dant, and  it  was  urged  that  it  might  have  passed  through  many 
other  hands.^ 

§  179.^  Under  this  head  may  be  ranked  several  presumptions,  «  i^'^ 
which  are  frequently  made  from  the  regular  course  of  business  in 
a  public  office.  Thus,  postmarks  on  letters,  —when  capable  of  being 
deciphered, — are  prima  facie  evidence  that  the  letters  were  in  the 
post  at  the  time  and  place  therein  specified  ;*  and,  by  virtue  of  a 
special  enactment,  "the  official  mark  of  any  sum  on  any  postal 
packet  as  due  to  the  Post-office,  British,  colonial,  or  foreign,  in 
respect  of  that  packet,  shall  in  every  part  of  Her  Majesty's  dominions 
be  received  as  evidence  of  the  liability  of  such  packet  to  tHe  sum  so 
marked."  ^  Again,  if  a  letter  properly  directed  '^  is  proved  to  have 
been  either  put  into  the  post-office,  or  delivered  to  the  postman,'  it 
is  presumed,  fi-om  the  known  course  of  business  in  that  department 
of  the  public  service,  that  it  reached  its  destination  at  the  regular 
time,  and  was  received  by  the  person  to  whom  it  was  addressed.* 


'  Welch  V.  Seaborn,  1  Stark.  E.  747  ;  Breton  v.  Cope,  Pea.  R.  30  ;  Lloyd  v. 
Sandiland,  Gow,  R.  13,  16  ;  Gary  v.  Gerrish,  5  Esp.  9  ;  Aubert  v.  Walsh,  4 
Taunt.  293  ;  Boswell  v.  Smith,  6  C.  &  P.  60  ;  Graham  v.  Cox,  2  C.  &  Kir.  702; 
Patton  V.  Ash,  7  Serg.  &  R.  115,  125. 

2  Mountford  v.  Harper,  16  M.  &  W.  825  per  Alderson,  B. 

*  Gr.  Ev.  §  40,  in  part. 

*  Fletcher  v.  Braddyll,  3  Stark.  R.  64;  R.  v.  Johnson,  7  East,  65;  R.  v. 
Watson,  1  Camp.  215;  Archangelo  v.  Thompson,  2  Camp,  623  ;  R.  v.  Plumer 
R.  &  R.  264;  Stocken  v.  Collin,  7  M.  &  W.  515;  Butler  t).  Mountgarret,  6  Ir! 
Law  R.,  N.  S.  77;  id.  in  Dom.  Proc,  7  H.  of  L.  Cas.  633. 

5  38  &  39  v.,  c.  22,  |  8. 

®  Where  the  address  was  "  Mr.  Haynes,  Bristol,"  it  was  held  insufficient  to 
raise  this  presumption,  Walter  v.  Haynes,  Ry.  &  M.  149,  per  Abbott,  C-  J. 

'  Skilbeck  v.  Garbett,  7  Q.  B.  846. 

^  Saunderson  v.  Judge,  2  H.  Bl.  509;  Woodcock  v.  Houldsworth,  16  M.  & 
W.  124;  Dunlop  v.  Higgins,  1  H.  of  L.  Cas.  381;  Household  Fire,  &c.,  Ins. 
Co.  V.  Grant,  48  L.  J.,  C.  P.  577,  per  Ct.  of  App. ;  Bussard  v.  Levering,  6 
Wheat.   102;   Lindenberger  v.   Beal,  id.  104;  Warren  v.  Warren,  1  C.  M.  &  R. 

(3063) 


198        NOTICES,  &C.,  SERVED  THROUGH  THE  POST,    [PART  I. 

§  120.  This  last  presumption  furnishes  in  most  cases  mere  prima  ^147 
facie  proof/  though  in  some  instances  it  is  rendered  conclusive, 
either  by  rules  of  court,  or  by  Act  of  Parliament.  Thus,  Order 
LXVII.  R.  3  of  the  Kules  of  1883,  provides,  that  "  notices  sent 
from  any  office  of  the  Supreme  Court  may  be  sent  by  post  ;  and 
the  time  at  which  the  notice  so  posted  would  be  delivered  in  the 
ordinary  course  of  post  shall  be  considered  as  the  time  of  service 
thereof,  and  the  posting  thereof  shall  be  a  sufficient  service."  So, 
under  sect.  142  of  the  Bankruptcy  Act  1883,  "all  notices  and 
other  documents,  for  the  service  of  which  no  special  mode  is 
directed,  may  be  sent  by  jirepaid  post  letter  to  the  last  known 
address  of  the  person  to  be  served  therewith ; " "  and  then  by 
virtue  of  a  Bankruptcy  Eule,^ — which,  however,  is  cuiiously  limited 
to  notices  of  meetings  of  creditors,^ — "  an  affidavit  by  the  trustee, 
official  receiver,  or  other  officer  of  the  court,  or  the  solicitor  in  the 
matter,  or  by  the  clerk  of  any  such  person,  that  the  notice  has 
been  duly  posted,  shall  be  sufficient  evidence  of  such  notice  having 
been  duly  sent  to  the  person  to  whom  the  same  was  addressed." 
Kul5s  144 — 148  contain  special  provisions  regulating  the  service  of 
creditor's  petitions,  and  the  proof  of  such  service,  while  R.  123 
establishes  a  similar  practice  with  respect  to  bankruptcy  notices,  and 
R.  201  governs  the  mode  of  serving  and  proving  service  of  petitions 
for  administering  insolvent  estates.  R.  82  contains  a  curious 
regulation,  for  it  provides  that,  "  where  notice  of  an  order  or  other 
proceeding  in  Court  may  be  served  by  post,  it  shall  be  sent  by 
registered  letter."  ^  Again,  in  Scotland,  any  summons  or  warrant 
of  citation,  whether  of  a  party  or  a  witness,  or  warrant  of  service  or 
judicial  intimation,  may,  in  any  civil  action  or  proceeding  in  any 
Court,  be  executed  by  posting  a  registered  letter  duly  addressed.® 
But,  under  the  Companies'  Clauses,  the  Lands'  Clauses,  and  the 
Railway  Clauses  Consolidation  Acts,  summonses,  notices,  writs,  and 


250 ;  Kufh  v.  Weston,  3  Esp.  54 ;  Dobree  v.  Eastwood,  3  C.  &  P.  250 ;  Wall's 
case,  15  Law  Eep.,  Eq.  18,  per  Malins,  V.-C,  ;  42  L.  J.,  Ch.  372,  S.  C.  ;  In  re 
Hickey,  I.  E.,  10  Eq.  117;  Story,  Bills,  ?i  300. 

1  Reidpath's  case,  40  L.  J.,  Ch,  39,  per  Ld.  Eomilly,  M.  E. 

M6  &  47  v.,  c.  52,  |  142.  ^  E.  188.  "  See  E.  184. 

*  See,  however,  46  &  47  V.,  c.  52,  ^  11,  which  relates  to  the  service  of  orders 
staying  proceedings,  and  is  inconsistent  with  the  above  rule. 

6  45  &  46  v.,  c.  77,  §§  3  &  4. 

(3064) 


CHAP.    V.j  NOTICES,    &C.,    SERVED   THROUGH   THE   POST.  199 

other  proceedings,  may  be  served  upon  the  respective  companies  or 
promoters  subject  to  these  Acts,  by  being  transmitted  through  the 
post  as  ordinary  letters,  so  long  as  they  are  directed  to  their  prin- 
cipal offices;'  and  a  like  service  of  notices  by  the  company  upon 
the  shareholders  will,  under  the  first- named  Act,  be  in  general 
deemed  sufficient.^  Somewhat  similar  clauses  are  inserted  in  the 
Companies  Act,  1862^  in  the  Mines  Regialation  Acts  of  1872,*  in 
the  Licensing  Act,  1872,"'  in  the  Regulation  of  Railways  Act,  1873,® 
in  the  Public  Health  Acts  of  1875^  for  England,  and  1878  for 
Ireland,^  in  the  Friendly  Societies  Act,  1875,*'  in  the  Public  Works 
Loans  Act,  1875,'"  in  the  Agricultural  (England)  Holdings  Act, 
1883,"  in  the  Conveyancing  and  Law  of  Property  Act,  1881,'^  in 
the  Patents,  Designs,  and  Trade  Marks  Act,  1883,"  and  in  a  variety 
of  other  statutes.'* 

~^8  &  9  v.,  c.  16,  I  135  ;  c.  18,  1 134  ;  c.  20,  I  138. 

2  8  &  9  v.,  c.  IG,  §  136.  *  25  &  26  V.,  c.  89,  H  62,  63. 

*  35  &  36  v.,  c.  76,  I  71  ;  and  c.  77,  I  40. 

*  35  &  36  v.,  c.  94,  ^  70.  «  36  &  37  V.,  c.  48,  I  35. 

^  38  &  39  v.,  c.  55,  |  267.  «  4I  &  42  V.,  c.  52,  I  267,  Ir. 

9  38  &  39  v.,  c.  60,  I  33,  subs.  11  ;  as  amended  by  42  V.,  c.  9. 

1"  38  &  39  v.,  c.  89,  ^  47.  "  46  &47  V.,  c.  61,  ?  28. 

12  44  &  45  v.,  c.  41,  i  67,  subs.  4.         "  46  &  47  V.,  c.  57,  |  97. 

'*  See  7  &  8  v.,  c.  33,  I  6  ;  8  &  9  V.,  c.  188,  |  108  ;  7  &  8  V.,  c.  101,  §  72 ; 
10  &  11  v.,  c.  32,  §  60  ;  6  tt  7  V.,  c.  18,  ?  100  ;  explained  in  Bishop  v.  Helps, 
2  Com.  B.  45  ;  Hickton  v.  Antrobus,  id.  82  ;  Eayley  v.  Overseers  of  Nantwich, 
id.  118  ;  Lewis  v.  Evans,  44  L.  J.,  C.  P.  41  ;  10  Law  Eep.,  C.  P.  297  ;  and  2 
Hop  &  Colt.  279,  S.  C;  Hornsby  v.  Robson,  1  Com.  B.,  N.  S.  63  ;  Hannaford 
V.  Wbiteway,  26  L.  J.,  C.  P.  75  ;  13  &  14  V.,  c.  69,  |§  11.3,  114,  Ir.  As  to 
sending  by  the  post  notices  on  behalf  of  the  Meti'op.  Board  of  Works,  see  18  & 
19,  v.,  c.  120,  ?i  221  ;  notices  relative  to  the  proceedings  of  charitable  institu- 
tions, see  14  &  15  V.,  c.  56,  ^  2,  and  46  &  47  V.,  c.  36,  I  43  ;  notices  under  the 
Copyhold  Acts,  see  21  &  22  V.,  c.  94,  §  20;  notices  under  "The  Endowed 
Schools  Act,  1869,"  see  32  &  33  V.,  c.  56,  §  57;  notices  and  other  documents 
under  "The  Elementary  Education  Act,  1870,"  see  33  &  34  V.,  c.  75,  |  81  ; 
notices  under  "The  Valuation  Metropolis  Act,  1869,"  see  32  &  33  V.,  c.  67, 
§  65;  notices  and  other  documents  under  "The  Eccles.  Dilapid.  Act,  1871," 
see  34  &  35  V.,  c.  43,  |  69  ;  notices  and  documents  under  "The  Explosives 
Act,  1875,  see  38  &  39  V.,  c.  17,  ?  85;  notices  and  documents  under  "The 
Factory  and  Workshop  Act,  1878,"  see  41  V.,  c.  16,  ?  79  ;  notices  and  docu- 
ments under  "The  Dentists  Act,  1878,"  see  41  &  42  V.,  c.  33,  I  39;  notices 
under  "The  Telegraph  Act,  1878,"  see  41  &  42  V.,  c.  76,  §  12  ;  notices  under 
"The  Contagious  Diseases  (Animals)  Act,  1878,"  see  41  &  42  V.,  c.  74,  I  57; 
notices  of  injury  under  "The  Employers'  Liability  Act,  1880,"  see  43  &  44 
v.,  c.  42,  ^  7  ;  and  Moyle  v.  Jenkins,  L.  R.,  8  Q.  B.  D.  116  ;  51  L.  J.,  Q.  B. 
112,  S.  C. ;  notices  and  documents  under  "The  Alkali,  &c.,  Works  Regulation 

(3065) 


200  PRESUMPTIONS   FOUNDED   ON   COURSE   OF   BUSINESS.    [PAET  I. 

§  180a.  Again,  at  common  law,  the  time  of  clearance  of  a  vessel,  §  147 
sailing  under  a  licence,  has  been  presumed  to  have  been  indorsed 
on  the  licence,  which  was  lost,  upon  its  being  shown,  that  without 
such  indorsement  the  custom-house  would  not  have  permitted 
the  goods  to  be  entered.'  So,  on  proof  that  goods,  which  cannot 
be  exported  without  licence,  were  entered  at  the  custom-house  for 
exportation,  a  licence  to  export  them  will  be  presumed.^ 

§  181.  The  like  presumption  is  also  sometimes  drawn  from  the  §  148 
usual  course  of  men's  private  offices  and  business,  where  the  primary 
evidence  of  the  fact  is  wanting.'*  Thus,  the  underwriters  upon  a 
foreign  ship  or  a  foreign  voyage  are  presumed  to  know  the  usages 
and  laws  of  foreign  states  which  affect  that  ship  or  that  voyage, 
because  such  knowledge  is  necessary  for  the  due  conduct  of  the 
business.^  So,  an  underwriter  is  often  presumed  in  fact,  though 
not  in  law,^  to  know  the  contents  of  Lloyd's  Shipping  List,  because 
this  is  a  document,  to  which,  in  the  ordinary  course  of  his  business, 
he  has  access;  but  this  last  presumption  is  strictly  confined  to 
cases,  where  the  assured  has  made  no  representation  inconsistent 
with  the  list,  which  is  calculated  to  mislead  the  underwriter.*^  It 
may  also  be  laid  down  as  clear  law.  that  if  a  man  deals  in  a  particu- 
lar market,  he  will  be  taken  to  act  according  to  the  custom  of  that 
market;  and  if  he  directs  another  to  make  a  contract  at  a  particu- 
lar place,  he  will  be  presumed  to  intend  that  the  contract  should  be 
made  according  to  the  usage  of  that  place.'  Thus,  if  a  person  em- 
Act,  18S1,"  see  44  &  45  V.,  c.  37,  ^  26 ;  notices  to  men  enrolled  in  the  Army 
Reserve,  sent  underthe  Army  Act,  1881,  see  44  &  45  V.,  c.  58,  ?  163,  subs.  F.; 
summonses,  notices  or  documents  requiring  service  under  "The  Con-upt  and 
Illegal  Practices  Prevention  Act,  1883,"  see  46  &  47  V.,  c.  51,  §  62. 

1  Butler  V.  Allnutt,  1  Stark.  R.  222. 

^  Van  Omeron  v.  Dowick,  2  Camp.  44. 

3  Doe  V.  Turford,  3  B.  &  Ad.  890,  895  ;  Champneysi'.  Peck,  1  Stark.  R.  404  ; 
Pritt  I'.  Fairclough,  3  Camp.  305. 

*  Young  V.  Turing,  2  M.  «&  Gr.  603,  per  Ld.  Abinger  ;  2  Scott,  N.  R.  752, 
S.  C. ;  Noble  v.  Kennoway,  2  Dong.  513,  per  Ld.  Mansfield. 

°  Morrison  v.  The  Universal  Mar.  Ins.  Co.,  42  L.  J.,  Ex.  17. 

«  Mackintosh  v.  Marshall,  11  M.  &  W.  116. 

'  Bayliffe  v.  Butterworth,  1  Ex.  R.  429,  per  Alderson,  B. ;  5  Rail.  Cas.  288, 
S.  C. ;  Pollock  V.  Stables,  12  Q.  B.  765  ;  5  Rail.  Cas.  352,  S.  C. ;  Greaves'  v. 
Legg,  11  Ex.  R.  642;  2  H.  &  N.  210,  S.  C.  in  Ex.  Ch.,  nom.  Graves  v.  Legg; 
Buckle  V.  Knoop,  36  L.  J.,  Ex.  49  ;  S.  C.  aff.  in  Ex.  Ch.,  id.  223.  See  post, 
§  1160,  et  seq. 

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CHAP,  v.]      PRESUMPTIONS  FOUNDED  ON  COURSE  OF  BUSINESS.  201 

ploys  a  broker  on  the  Stock  Exchange,  he  impliedly  authorises  him 
to  act  in  accordance  with  the  rules  there  established,  provided 
only  that  they  be  reasonable,  or,  in  other  words,  legal;'  and  in 
such  case  it  matters  not  whether  the  principal  be  himself  acquainted 
with  the  rules  by  which  such  brokers  are  governed.'^  But  this 
doctrine  will  not  be  carried  too  far;^  and  therefore  where  goods 
were  shipped  at  Liverpool,  and  the  bill  of  lading  was  indorsed  to 
parties  residing  in  New  South  Wales,  evidence  of  a  local  usage  to 
Liverpool,  which  was  tendered  with  the  view  of  affecting  the  con- 
struction of  the  written  contract,  was  held  to  be  inadmissible  as 
against  the  indorsees,  in  the  absence  of  proof  that  they  were 
acquainted  with  the  usage.*  So,  it  has  on  several  occasions  been 
ruled  that  "  Lloyd's"  at  the  Royal  Exchange  is  not  a  market  within 
the  rule,  and  that  the  usage  there  prevalent  among  insurance  brokers, 
is  not  such  a  general  usage  as  to  bind  mei'chants  and  shipowners 
unacquainted  with  its  existence.^  It  may  also  admit  of  doubt, 
whether  the  doctrine  would  be  held  to  apply  in  its  full  force  to 
cases  of  maritime  insurance,  as  authorities'^  are  not  wanting,  which, 
in  the  language  of  Lord  Wensleydale,  "  look  the  other  way."  ' 

§  182.     Again,  if  letters  or  notices  properly  directed  to  a  gentle-    |  148 


1  See  Pierson  v.  Scott,  47  L.  J.,  Ch.  705,  per  Fry,  J.;  L.  R,  9  Ch.  D.  198,  S. 
nom.  Pearson  v.  Scott. 

^  Sutton  V.  Tatliam,  10  A.  &  E.  27;  recognised  in  Bayliffe  v.  Butterworth, 
1  Ex.  E.  425;  Pollock  v.  Stables,  12  Q.  B.  765;  Bayley  v.  Wilkius,  7  Com.  B. 
886:  Taylor  v.  Stray,  2  Com.  B.,  N.  S.  175;  Hodgkinson  v.  Kelly,  37  L.  J.,  Ch. 
837,  per  Ld.  Romilly,  M.  R.;  6  Law  Rep.,  Eq.  496,  S.  C;  Coles  v.  Bristowe,  4 
Law  Rep.,  Ch.  Ap.  3;  38  L.  J.,  Ch.  81,  S.  C;  Bowring  v.  Shepherd,  40  L.  J., 
Q.  B.  129;  Grissell  v.  Bristowe,  38  L.  J.,  C.  P.  10;  4  Law  Rep.,  C.  P.  36,  S.  C. 
in  Ex.  Ch.;  Duncan  v.  Hill,  40  L.  J.,  Ex.  137;  6  Law  Rep.,  Ex.  255,  S.  C.  See 
Merry  v.  Nickalls,  7  Law  Rep.,  Ch.  Ap.  733;  41  L.  J.,  Ch.  767,  S.  C;  and 
Nickalls  v.  Merry,  7  Law  Rep.,  H.  L.  530;  and  45  L.  J.,  Ch.  575,  S.  C.  inDom. 
Proc 

=*  See  Robinson  v.  ISIollett,  7  Law  Rep.,  H.  L.  802. 

*  Kirchner  v.  Venus,  12  Moo.  P.  C.  R.  361.  But  see  The  Steamship  Co. 
Norden  v.  Dempsey,  45  L.  J.,  C.  P.  764. 

»  Sweeting  v.  Pearce,  7  Com.  B.,  N.  S.  449;  9  Com.  B.,  N.  S.  534,  and  30  L. 
J.,  C.  P.  109,  S.  C.  in  Ex.  Ch.;  Scott  v.  Irving,  1  B.  &  Ad,  605;  Todd  v.  Reid, 
4  B.  &  A  210;  Gabay  v.  Lloyd,  3  B.  &  C.  793;  5  D.  &  R.  641,  S.  C. 

«  Bartlett  v.  Pentland,  10  B.  &  C.  760;  Gabay  v.  Lloyd,  3  B.  &C.  793. 

'  Bayliffe  t\  Butterworth,  1  Ex.  R.  428;  5  Rail.  Cas.  287,  S.  C. 

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202  ACCURATE  WORKING  OF  SCIENTIFIC  INSTRUMENTS.      [PART  I. 

man  be  left  with  his  servant,  it  is  only  reasonable  to  presume, 
prima  facie,  that  they  reached  his  hands. ^  The  fact,  too,  of  send- 
ing a  letter  to  the  post-office  will  in  general  be  regarded  by  a  jury 
as  presumptively  proved,  if  the  letter  be  shown  to  have  been  handed 
to,  or  left  with,  the  clerk,  whose  duty  it  was  in  the  ordinary  course 
of  business  to  carry  it  to  the  post,  and  if  he  can  declare  that, 
although  he  has  no  recollection  of  the  particular  letter,  ho  iu vari- 
ably took  to  the  post-office  all  letters  that  either  were  delivered  to 
him,  or  were  deposited  in  a  certain  place  for  that  purpose.^ 


§  183.  Akin  to  this  presumption  is  that  which  is  sometimes  re- 
cognised with  respect  to  the  working  accuracy  of  certain  scientific 
instruments.  For  example,  a  jury  would  be  advised,  in  the  absence 
of  evidence  to  the  contrary,  to  rely  on  the  general  correctness  of  a 
watch  or  a  clock,  which  had  been  consulted  for  the  purpose  of  fixing 
the  time  when  a  certain  event  happened.  So,  a  thermometer  woiild 
be  regarded  as  a  sufficiently  safe  indication  of  the  heat  of  any  liquid 
in  which  it  had  been  immersed,  and  a  pedometer  might  be  used  as 
evidence  of  the  distance  between  two  places  which  had  been 
traversed  by  the  wearer.  Blood  stains  are  every  day  detected  by 
means  of  known  chemical  tests.  So  aneroids,  anemometers,  and 
a  variety  of  other  ingenious  contrivances  for  detecting  different 
matters,  will  occasionally  play  an  important  part  as  furnishing  pre- 
sumptive proof  in  Courts  of  Justice.  In  a  few  instances  this  mode 
of  proof  has  been  recognised  by  the  Legislature.  Thus,  under 
"  The  Gas  Works  Clauses  Act,  1871,"  and  the  Public  Health  Acta 
of  1875  for  England,  and  1878  for  Ireland,  the  register  of  a  gas  or 


'  Macgregor  v.  Kelly,  3  Ex.  R.  794.  This  presumption  is  sometimes  conclu- 
sive, as,  for  instance,  in  the  case  of  a  notice  to  quit  served  at  the  tenant's  house 
on  one  of  his  servants.  Tanham  i'.  Nicholson,  5  Law  Rep.,  H.  L.  561;  I.  R.,  6 
C.  L.  188,  S.  C.  per  Dom.  Proc,  reversing  S.  C.as  reported  in  I.  R.,  4  C.  L.  185. 

2  Skilbeck  v.  Garbett,  7  Q.  B.  846;  Hetherington  v.  Kemp,  4  Camp.  193, 
Trotter  v.  Maclean,  L.  R.,  13,  Ch.  D.  580,  per  Fry,  J.;  49  L.  J.,  Ch.  256,  S.  C; 
Ward  I'.  Ld.  I^ondesborough,  12  Com.  B.  252;  Spencer  v.  Thompson,  6  Ir.  Law 
R.,»N.  S.  537,  565.  So,  in  Scotland,  "where  there  is  proof  of  the  regular 
practice  of  a  house  of  business  to  depatch  its  letters  in  a  particular  manner  to 
the  post-office,  it  is  not  necessary  to  prove  that  the  individual  letter  in  question 
was  so  despatched."     Dickson,  Ev.  |  6,  and  cases  cited  in  n.  e. 

(3068) 


CHAP,  v.]     PRESUMPTIONS  IN  LAW  OF  PARTNERSHIP.         203 

water  meter  "shall  be  prima  facie  evidence  of  the  quantity"  of  gas 
or  water  consumed.' 


§  184  The  law  of  partnership  recognises  certain  presumptions,  §  149 
but  before  referring  to  these  it  will  be  convenient  to  notice  one 
which, — contrary  to  former  decisions,^ — is  no  longer  regarded  as  of 
binding  force.  Prior  to  the  year  1860,  the  mere  fact  of  participation 
in  the  net  profits  of  a  business  was  held,  by  virtue  of  an  arbitrary 
presumption  of  law,  to  constitute  a  partnership.  In  Cox  v.  Hick- 
man,'^ however,  the  House  of  Lords  denied  the  existence  of  any  such 
legal  presumption;  and  the  result  of  that  decision  would  seem  to  bo) 
that,  although  a  right  to  share  in  the  profits  of  trade  is  a  strong 
test  of  partnership,  and  even  when  standing  alone  will  justify  a  jury 
in  presuming  its  existence,  yet  the  question  whether  or  not  several 
persons  are  partners  must  in  each  case  depend  on  the  real  intention 
and  contract  of  the  parties.*  Turning  now  to  the  presumptions 
which  still  prevail  in  partnership  law,  it  may  first  be  noticed,  that, 
— in  the  absence  of  any  contract  between  partners,  or  any  dealing 
from  which  a  contract  may  be  implied, — the  common  law  as  best  in- 
terpreted both  in  England,^  and  in  America,^  would  seem  io  infer, — 
like  the  civil  law,^ — that  the  business  has  been  conducted  on  terms 
of  an  equal  partnership;  and,  consequently,  that  each  partner  has  a 
right  to  insist  on  an  equal  participation  in  profit  and  loss.     Lord 

1  34  &  35  v.,  c.  41,  I  20  ;  38  &  39  V.,  c.  55,  §  59  ;  41  &  42  V.,  c.  52, 
§  69,  Ir. 

2  Waugh  V.  Carver,  2  H.  Bl.  235  ;  Pott  v.  Eyton,  3  Com.  B.  32. 

3  8  H.  of  L.  Cas.  268.     See,  also,  28  &  29  V.,  c.  86. 

*  Moll  wo,  March  &  Co.  v.  The  Ct.  of  Wards,  4  Law  Rep.,  P.  C.  419,  435; 
Ross  V.  Parkyns,  20  Law  Rep.,  Eq.  331,  per  Jessel,  M.  R. ;  44  L.  J.,  Ch.  610, 
S.  C;  Pooley  v.  Driver,  L.  R.,  5  Ch.  D.  458,  per  Jessel,  M.  R. ;  46  L.  J.,  Ch. 
466,  S.  C;  Ex  p.  Tennant,  re  Howard,  per  Ct.  of  App.,  L.  R.,  6  Ch.  D.  303  ; 
Ex  p.  Delhasse,  re  Megevand,  L.  R.,  7  Ch.  D.  511,  per  Ct.  of  App.;  S.  C.  nom. 
Re  Megevand,  Ex.  p.  Delhasse,  47  L.  J.,  Bk.,  65;  Pawsey  v.  Armstrong,  50 
L.  J.,  Ch.  683. 

^  Stewart  v.  Forbes,  1  Hall  &  T.  461,  472,  per  Ld.  Cottenham,  C,  recognising 
the  result  of  Ld.  Eldon  in  Peacock  v.  Peacock,  16  Ves.  49,  56  ;  Webster  v. 
Biay,  7  Hare,  159  ;  M'Gregor  ?>.  Bainbrigge,  id.  164,  n.  a ;  Robinson  v.  Ander- 
son, 20  Beav.  98 ;  7  De  Gex,  M.  &  G.  239,  S.  C. ;  Collins  v.  Jackson,  31  Beav. 
645  ;  Story,  Part.,  I  24.  But  see,  contra.  Peacock  v.  Peacock,  2  Camp.  45,  ^er 
Ld.  Ellenborough  ;  and  Tompson  v.  Williamson,  7  Bligh,  432. 

«  Gould  V.  Gould,  6  Wend.  263. 

^  Inst.  lib.  3,  tit.  26,  ^  ;  Dig-,  lib.  17,  tit.  2,  §  29. 

(3069) 


204  PRESUMPTIONS  RESPECTING   PARTNERS.  [PAKT  I. 

Wensleydale  has  even  held  at  Nisi  Prius,  that,  in  the  absence  of  all 
evidence  on  the  subject,  partners  must  be  presumed  to  be  interested 
in  equal  proportions  in  the  partnership  stocks 


§  185.  Again,  every  member  in  an  ordinary  heading  copartnership 
is  presumed  in  law  to  be  intrusted  with  a  general  authority  to  enter 
into  contracts  on  behalf  of  the  firm  for  the  usual  purposes  of  the 
business,  and,  consequently,  to  be  empowered  to  borrow  money,  and 
to  contract  or  pay  debts,  on  account  of  the  partnership,  and  to  make, 
draw,  indorse,  and  accept  negotiable  securities  in  the  firm's  name.^ 
Similar  powers,  hwvever,  are  not  presumed  to  exist  in  the  case  of 
mining  copartnership ;  and  it  is  now  determined  that  one  of 
several  co-adventurers  in  a  mine  has  no  authority,  as  such,  to  nego- 
tiate any  bill  on  behalf  of  his  fellows,^  or  to  pledge  the  credit  of  the 
general  body  for  money  borrowed  for  the  purposes  of  the  concern.* 
Still  less  have  the  members  of  a  firm,  which  is  not  established  for 
trading  purposes,  as,  for  example,  a  firm  of  solicitors,  any  implied 
authority  to  bind  each  other  by  drawing  or  indorsing  bills  of 
exchange,  or  making  promissory  notes  or  even  post  dated  cheques.^ 
Neither  in  an  ordinary  partnership  has  one  member  of  the  firm 
power  to  bind  the  others  by  contracts  out  of  the  apparent  mode  of 
the  partnership  dealings,  merely  because  they  are  reasonable  acts 
towards  affecting  the  partnership  purposes;'^  and,  therefore,  where 
a  partner  signed  a  guarantee  in  the  name  of  the  firm  for  the  pur- 
pose of  giving  effect  to  a  transaction  within  the  scope  of  the  part- 
nership dealings,  the  court,  in  the  absence  of  proof  of  any  usage, 
and  of  any  recognition  by  the  other  partners,  refused  to  infer  that  he 
was  authorised  to  act  in  this  manner,  and  held  that  the  firm  was 


'  Farrar  v.  Beswick,  1  M.  &  Rob.  527. 

2  Jenkins  li.  Morris.  16  INI.  &  W.  877,  880;  Ex  parte  Dariington,  &c.,  Bank  Co., 
re  Riches  &  INIarshall's  Trust  Deed,  4  De  Gex,  J.  e%  S.  581 ;  Story,  Part,  {?/,  102, 
124,  125 ;  Bk.  of  Australasia  v.  BreiUat,  6  Moo.  P.  C.  R.  152,  193,  194.  See 
Maclae  v.  Sutherland,  3  E.  &  B.  1. 

«  Dickinson  v.  Valpy,  10  B.  &  C.  128  ;  5  M.  &  R.  126,  S.  C. 

*  Ricketts  v.  Bennett,  4  Com.  B.  686 ;  Burmester  i'.  Norris,  6  Ex.  R.  796. 
Se#,  In  re  German  Mining  Co.,  22  L.  J.,  Ch.  926;  and  post,  |  1185,  ad  fin. 

*  Foster  v.  Mackreth,  2  Law  R.,  Ex.  163;  36  L.  J.,  Ex.  94,  S.  C;  Hedley 
V.  Bainbridge,  3  Q.  B.  316  ;  11  L.  J.,  Q.  B.  293,  S.  C. 

*  See  Bishop  v.  Countess  of  Jersey,  2  Drew.  143. 

(3070) 


CHAP,  v.]       PRESUMPTIONS  RESPECTING  AGENTS — CARRIERS.  205 

not  bound  by  the  guarantee.'  Had  any  evidence  been  given  of 
the  adoption  of  the  act  by  the  other  partners,  the  result  would,  of 
course,  have  been  different." 

§  18G.  With  respect  to  the  law  of  agency,  it  may  be  noted,  that  ^  I49i5 
when  the  seller  deals  with  an  agent  resident  in  this  country,  and 
acting  for  a  foreign  principal,  the  ordinary  presumption  is  that  he 
does  not  contract  with  the  foreigner,  but  that  he  simply  trusts  the 
party  with  whom  he  actually  makes  the  bargain.^  This  rule,  how- 
ever, is  by  no  means  what  Mr.  Justice  Story  represents  it  to  be, — 
"  a  presumption  so  strong,  as  almost  to  amount  to  a  conclusive  pre- 
sumption of  law;"*  but  it  is  at  best  a  mere  presumption  of  fact, 
liable  to  be  rebutted  by  any  evidence,  whether  extrinsic  or  intrinsic, 
which  tends  to  show  that  credit  was  really  intended  to  be  given  to 
the  foreign  principal.^ 

§  187.  One  or  two  presumptions  may  here  be  mentioned,  which  ?  150 
attach  to  particular  trades,  and  which,  though  apparently  harsh, 
are  in  reality  founded  on  just  principles  of  public  policy.*^  For 
instance,  if  goods  intrusted^  to  a  common  carrier  he  lost  or  damaged, 
the  law  will  conclusively  presume  that  the  carrier  has  been  guilty  of 
negligence,  unless  he  can  show  that  the  loss  or  damage  was  occa- 
sioned by  what  is  technically  called  "  the  act  of  God,"  or  by  the 
Queen's  enemies.^     So,  the  loss  or  damage  of  luggage,  while  under 

^  Brettle  v.  Williams,  4  Ex.  R.  623;  overruling  Ex  parte  Gardom,  1.5  Ves. 
286.  See,  also,  Hasleham  v.  Young,  5  Q.  B.  833;  Duncan  v.  Lo-wndes,  3  Camp. 
478.  One  partner  has  no  implied  authority  to  bind  another  by  submission  to 
arbitration,  Hatton  v.  Royle,  27  L.  J.,  Ex.  468. 

2  Sandilands  r.  Marsh,  2  B.  &  A.  673.  See  Maclae  v.  Sutherland,  3  E.  & 
B.  1. 

3  Heald  v.  Kenworthy,  10  Ex.  R.  743,  per  Parke,  B. 
*  Story,  Agen.,  |  290. 

^  Green  v.  Kopke,  18  Com.  B.  549;  Mahoney  v.  Kekule,  14  Com.  B.  390. 

6  Best,  Ev.  528—530. 

'  This  rule  does  not  extend  to  a  passenger's  luggage  placed  in  the  same  car- 
riage with  him  on  a  railway;  and  if  such  luggage  be  lost  or  injured  the  Com- 
pany will  only  be  liable  for  the  damage  on  proof  of  the  negligence  of  their  ser- 
vants; Bergheim  v.  Gt.  East.  Ry.  Co.,  47  L.  J.,  C.  P.  318,  per  Ct.  of  App. ;  L. 
R.,  3  C.  P.  D.  221,  S.  C. 

»  Ross  V.  Hill,  2  Com.  B.  890,  per  Tindal,  C.  J.;  Coggs  v.  Bernard,  2 
Ld.  Ray.  918,  per  Ld.  Holt;  1  Smith,  L.  C.  171,  S.  C.  See  post,  §  1172. 
The  Scotch  law  on  this  subject  is  now  embodied  in  §  17  of  19  &  20  V.,  c.  60, 

(3071) 


206    PRESUMPTIONS  RESPECTING  INNKEEPERS — NEGLIGENCE.  [PABT  I. 

the  custody  of  a  stage-coachman,  a  cabman,  or  even  a  gratuitous 
bailee,  will  raise  a  prima  facie  inference  of  want  of  care,  which,  in 
the  absence  of  evidence  to  the  contrary,  will  render  the  bailee  liable 
to  an  action.'  So,  when  chattels,  not  exceeding  in  value  the  sum 
of  thirty  pounds,^  have  been  deposited  by  a  guest''  in  a  public 
inn, — which  term  would  seem  to  include  an  hotel,  a  tavern,  and  a 
coffee-house,* — and  have  there  been  lost  or  injured,  the  prima  facie 
presumption  is  that  the  loss  or  injury  was  occasioned  by  the  negli- 
gence, or,  at  least,  through  the  defect,  of  the  innkeeper  or  his  ser- 
vants:^ but  on  proof  that  it  was  caused  by  the  negligence  of  the 

which  enacts,  that  ' '  all  carriers  for  hire  of  goods  within  Scotland  shall  be 
lialDle  to  make  good  to  the  owner  of  such  goods  all  losses  arising  from 
accidental  iire,  while  such  goods  are  in  the  custody  or  possession  of  such 
carriers." 

1  Ross  II.  Hill,  2  Com.  B.  877;  Harris  r.  Costar,  1  C.  &  P.  637;  Coggs 
V.  Bernard,  2  Ld.  Ray.  909.  See  Gt.  North.  Ry.  Co.  v  Sheppard,  8  Ex. 
R.  30. 

^  The  common  law  liability  of  innkeepers  has  been  restricted  by  the  Act  of 
26  &  27  v.,  c.  41,  which  enacts,  in  ^  1,  that  no  innkeeper  shall  be  liable  to 
make  good  to  any  guest  any  loss  or  injury  to  property  brought  to  his  inn  "not 
being  a  horse  or  other  live  animal,  or  any  gear  appertaining  thereto,  or  any 
carriage,"  to  a  greater  amount  than  thirty  pounds,  except  1,  where  such  prop- 
erty "shall  have  been  stolen,  lost,  or  injured  through  the  wilful  act,  default, 
or  neglect  of  such  innkeeper,  or  any  servant  in  his  employ;"  2,  where  such 
property  "shall  have  been  deposited  expressly  for  safe  custody  with  such  inn- 
keeper." See  Moss  v.  Russell,  30th  Oct.,  1884,  per  Ct.  of  App.  The  Act  then 
contains  a  proviso  that  the  innkeeper  may  require,  as  a  condition  of  his  liabil- 
ity, that  the  property  shall  be  deposited  in  a  box,  or  other  receptacle,  fastened 
and  sealed  by  the  depositor.  §^  2  &  3  respectively  enact,  that  no  innkeeper 
shall  be  entitled  to  the  benefit  of  this  Act,  who  refuses  to  receive  for  safe  cus- 
tody any  property  of  his  guests,  or  who  omits  to  exhibit  "in  a  conspicuous 
part  of  the  hall  or  entrance  to  his  inn  "  a  printed  copy  of  the  first  section  of 
the  Act.  See,  as  to  this  last  point.  Spice  v.  Bacon,  per  Ct.  of  App.,  46  L.  J., 
Ex.  713;  L.  R.,  2  Ex.  D.  463,  S.  C. 

•^  The  depositor  must  be  a  guest.  See  as  to  what  constitutes  a  guest,  Strauss 
V.  County  Hotel  Co.,  53  L.  J.,  Q.  B.  25;  L.  R.,  12  Q.  B.  D.  27,  S.  C. 

*  Thompson  v.  Lacy,  3  B.  &  A.  283;  Turrill  v.  Crawley,  13  Q.  B.  197.  H 
of  26  &27  v.,  c.  41,  interprets  the  word  "inn"  as  meaning  "  iany  hotel,  inn, 
tavern,  public-house,  or  other  place  ot  refreshment,  the  keeper  of  which  is  now 
by  law  responsible  for  the  goods  and  property  of  his  guests."  See  Doe  v. 
Laming,  4  Camp.  76;  and  R.  v.  Rymer,  L.  R.,  2  Q.  B.  D.  1.36;  13  Cox,  378,  S. 
C.  A  boarding-house  or  lodging-house  keeper  has  no  duty  imposed  upon  him 
by  law  to  take'care  of  the  lodgers'  goods,  Holder  v.  Soulby,  29  L.  J.,  C.  P.  246; 
8  Com.  B.,  N.  S.  254,  S.  C;  Dansey  v.  Richardson,  3  E.  &  B.  144. 

s  Dawson  r.  Chamney,  5  Q.  B.  164;  Morgan  r.  Ravey,  6  H.  &  N.  265;  30  L. 
J.,  Ex.  131,  S.  C;  Richmond  r.  Smith,  9  B.  &  C.  9;  Burgess  v.  Clements,  4  M. 
&  Sel.  306;  Armistead  v.  Wilde,  17  Q.  B.  261;  Calye's  case,  8  Rep.  32  a;  1 
Smith,  L.  C.  102,  S.  C. ;  Day  v.  Bather,  2  H.  &  C.  14. 

(3072) 


CHAP,  v.]  PRESUMPTIONS  RESPECTING  NEGLIGENCE — ACCIDENTS.     207 

guest,  the  landlord's  responsibility  will  cease.'  The  salaried  manager 
of  an  hotel  belonging  to  a  company,  will  not  be  regarded  as  an  "inn- 
keeper" within  the  scope  of  this  rule,  though  the  hotel  licence  may 
have  been  granted  to  himself  personally.^ 

§  188.  While  discussing  the  subject  of  negligence,  it  deserves  ?  150a 
notice  that  the  judges  will  occasionally  permit,  or  even  advise  juries 
to  infer  negligence  from  the  mere  hapj^ening  of  an  accident.  For 
example,  this  course  has  been  piirsued  where  the  injury  complained 
of  was  caused,  either  by  a  collision  between  two  railway  trains 
belonging  to  the  same  company,^  or  by  a  railway  carriage  having, 
during  the  journey,  unaccountably  left  the  rails.*  So,  where  a  man 
was  hurt  by  a  barrel  of  flour  falling  on  him  out  of  a  warehouse 
window  while  he  was  walking  in  the  street  below,  the  court  held 
that  it  was  unnecessary  for  him,  in  suing  the  warehouseman  for 
negligence,  to  prove  what  actually  occasioned  the  fall  of  the  barrel.^ 
The  accident  was  one  which,  in  the  ordinary  course  of  thiiigs,  did 
not  happen  to  those  who  used  proper  care  in  the  management  of 
their  business,  and  therefore  it  afforded,  in  itself,  reasonable  evidence 
of  negligence,  in  the  absence  of  any  explanation  by  the  defendant.® 
On  the  other  hand,  in  a  case  whei-e  it  appeared  that  a  ladder,  inside 
a  private  house,  had,  from  some  unexplained  cause,  fallen  against 
an  upper  window,  and  broken  it,  and  the  glass  in  falling  had  damaged 
the  eye  of  a  person  who  was  passing  by  the  house  at  the  time,  it  was 
held  that  the  proof  of  these  facts  alone  was  insufficient  to  fix  negli- 
gence on  the  owner  of  the  house.' 


1  Armistead  ?;.  Wilde,  17  Q.  B.  261;  Cashill  v.  Wright,  6  E.  &  B.  891; 
Morgan  v.  Ravey,  2  Post.  &  Fin.  283;  Filipowski  v.  Merry  weather,  id.,  285; 
Oppenheim  v.  White  Lion  Hotel  Co.,  40  L.  J.,  C.  P.  231;  6  Law  Rep.,  C.  P. 
515,  S.  C;  Spice  v.  Bacon,  per  Ct.  of  App.,  46  L.  J.,  Ex.  713;  L.  R.,  2  Ex.  D. 
463,  S.  C. 

^  Dixon  V.  Birch,  42  L.  J.,  Ex.  135. 

^  Skinner  v.  Lond.  &  Brigh.  Ry.  Co.,  5  Ex.  R.  787. 

*  Flannery  v.  Waterf.  &  L.  Ry.  Co.,  I.  R.,  11  C.  L.  30. 

^  Byrne  v.  Boadle,  2  H.  ct  C.  722;  33  L.  J.,  Ex.  13  S.  C. ;  Scott  r.  Lond. 
Dock  C,  34  L.  J.,  Ex.  220;  3  H.  &  C.  596,  S.  C. ;  Kearney  v.  Lond.  & 
Brigh.  Ry.  Co.,  5  Law  Rep.,  Q.  B.  411;  39  L.  J.,  Q.  B.  200,  S.  C. ;  6  Law  Rep., 
Q.  B.  759,  &  40  L.  J.,  Q.  B.  285,  S.  C.  in  Ex.  Ch.  «  Id. 

■  Higgs  V.  Maynard,  1  H.  &  R.  581;  Welfare  v.  Lond.  &  Brigh.  Ry.  Co.,  38 
L.  J.,  Q.  B.  241;  4  Law  Rep.,  Q.  B.  693,  S.  C.  See  Moflfatt  v.  Bateman,  3  Law 
Rep.,  P.  C,  115. 

(3073) 


20S  PRESUMPTIONS  RESPECTING  INNOCENCE  OF  INFANTS.    [PART  I. 

§  ISO.  Other  disputable  presumptions  arise  in  respect  of  infants. 
Thus,  during  the  interval  between  seven  years  and  fourteen,  infants 
are  prima  facie  presumed  to  be  unacquainted  with  guilt,  and  there- 
fore cannot  be  convicted,  unless  the  jury  shall  be  satisfied  from  the 
evidence,  that,  at  the  time  when  the  offence  was  committed,  they  had 
a  guilty  knowledge  that  they  were  doing  wrong.'  This  rule,  though 
perhaps  originally  adopted  in  favorem  vit?e  with  respect  to  capital 
ofifences  only,"  has  for  many  years  past  been  expressly  held  appli- 
cable to  all  felonies;^  and  there  seems  no  reason  why,  on  principle, 
it  should  not  also  be  extended  to  misdemeanors,  with  the  exception, 
perhaps,  of  those  cases  where  an  infant  occupier  of  lands,  charged 
with  the  repair  of  a  bridge  or  road,  might  be  held  liable  to  an  indict- 
ment for  non-repair.*  The  test  of  juvenile  exemption  propounded 
by  Lord  Hale,  is  whether  the  accused  was  capable  of  discerning 
"between  good  and  evil;'"^  words  sufficiently  indefinite,  since  they 
may  apply  either  to  legal  responsibility  or  to  moral  guilt  i*^  and 
many  children  of  tender  years,  though  perfectly  well  aware  that  it 
is  wrong  to  take  what  does  not  belong  them,  and  who  are  conse- 
quently, according  to  this  test,  fit  subjects  for  punishment,  may  yet 
be  only  partially  acquainted  with  the  sinful  nature  of  theft,  and  be 
wholly  ignorant  that  it  is  a  crime  against  the  law  of  the  land.  It 
seems,  therefore,  to  be  a  law  savouring  of  harshness  which  permits 
a  child,  under  such  circumstances,  to  suffer  the  same  punishment 
as  it  inflicts  upon  a  grown  person.  Indeed,  the  loose  and  unsatis- 
factory manner  in  which  this  merciful  presumption  of  infantine 
innocence  has — at  least  in  former  years — been  practically  rebutted, 
cannot  be  more  clearly  exposed  than  by  refei'ring  to  a  statistical  return 
of  juvenile  delinquents,  published  in  the  present  reign,  by  which  it 
appears  that,  out  of  297  children  under  the  age  of  fifteen,  committed 
in  the  metropolis  alone  during  a  single  year,  238  were  actually  con- 
victed; and  of  these  no  fewer  than  36  were  sentenced  to  transporta- 


1  Russ.  C.  &  M.  1—5  "^  1  Hale,  c.  3. 

3  R.  V.  Owen,  4  C.  &  P.  236. 

*  R.  V.  Sutton,  3  A.  &  E.  597,  612. 

5  1  Hale,  27. 

®  See  30  Law  Mag.  24,  and  article  on  M'Naiigliten's  trial  in  Leg.  Obs. 
for  May  27,  1843,  as  to  the  dangerous  and  unphilo.sophical  nature  of  this 
test. 

(3C74) 


CHAP,  v.]        PRESUMPTIONS  RESPECTING  MARRIED  W(»IEN.  209 

tion.'     If  in  all  these  cases  malitia  supplevit  setatem,  no  one  will 
dispute  but  that  malice  has  had  much  to  supply. 

§  190.  With  respect  to  married  women,  also,  the  law  recognises  9  jr.T 
certain  presumptions.  Thus,  if  a  wife  commit  a  felony,"  other  than 
treason  or  homicide,^  or,  perhaps,  highway  robbery,*  in  company 
with  her  husband,  the  law  presumes  that  she  acted  under  his 
coercion,  and  consequently  without  any  guilty  intent,  unless  the 
fact  of  non-coercion  be  distinctly  proved.  This  presumption  appears, 
on  some  occasions,  to  have  been  considered  conclusive,  and  is  still 
practically  regarded  in  no  very  different  light,  especially  when  the 
crime  is  of  a  flagrant  character:  ^  but  the  better  opinion  seems  to 
be,  that  in  every  case,  the  presumption  may  now  be  rebutted  by 
positive  proof  that  the  woman  acted  as  a  free  agent  ;  ^  and  in  one 
case  that  was  much  discussed,'  the  Irish  judges  appear  to  have  con- 
sidered that   such  positive  proof  was  not  required,  but   that  the 

1  Porter's  Statist.  Tables,  part  14,  pp.  149,  151,  152,  153.  In  1844,  1596 
children,  under  the  age  of  fifteen,  were  committed  for  trial  in  England  and 
Wales.     Porter '6  Progress  of  Nation,  p.  65G. 

'^  Some  doubt  exists  as  to  the  crimes  exempted  from  this  presumption. 
"Thus  Ld.  Hale,  in  one  part  of  his  Pleas  of  the  Crown,  vol.  i.  pp.  45,  47, 
asserts  that  the  presumption  is  recognised  in  all  cases  excepting  treason  and 
murder  ;  but  in  later  passages,  id.  434,  516,  he  excludes  from  its  operation 
manslaughter  also,  and  cites  as  his  authority  a  passage  from  Dalton,  in  which 
manslaughter  is  not  mentioned,  Dalt.  c.  104,  p.  267  ;  new  ed.  c.  157,  p.  503. 
Mr.  Serjt.  Hawkins  makes  the  exceptions  consist  of  treason,  murder,  and 
robbery,  1  Hawk.  c.  1,  p.  4  ;  while  Mr.  Justice  Blackstone,  in  the  first  vol.  of 
hisComm.  mentions  only  treason  and  murder,  c.  15  ;  and  in  the  4th  vol.,  c.  2, 
excepts  also  crimes  that  are  mala  in  se,  and  prohibited  by  the  law  of  nature, 
as  murder  and  the  like.  *  *  "We  would  gladly  see  the  exception  extended  to 
all  capital  felonies,  if  not  to  all  crimes  punishable  with  transportation,  and 
thus  abolish  a  rule  of  law,  which  Avas  originally  founded  on  doctrines  that. 
no  longer  prevail,  and  which  every  married  man  knows  is  often  diametrically 
opposed  to  the  fact." — 30  Law  Mag.  pp.  9,  11. 

3  See  E.  V.  Manning,  2  C.  &  Kir.  887,  903. 

*  In  R.  r.  Stapleton,  Jebb,  C.  C.  93,  the  majority  of  the  judges  appeared 
to  think  that  this  presumption  did  not  apply  to  cases  of  highway  robbery. 
Neither  does  it  apply  to  a  case  of  felonious  wounding  with  intent  to  dis- 
figure, or  to  do  grievous  bodily  harm,  R.  v.  Smith,  Dear.  &  Bell,  553  ;  8  Cox, 
27  S.  C.     But  see  R.  v.  Torpey,  12  Cox,  45. 

*  1  Hale,  45  ;  R.  v.  Archer,  1  Moo.  C.  C.  143.     See  R.  v.  Torpey,  12  Cox,  45. 

*  See  7  Rep.  of  Cri.  Law  Com.  p.  21  ;  30  Law  Mag.  pp.  9 — 12  ;  R.  v.  Hughes, 
2  Lew.  C.  C.  229;  1  Russ.  C.  &  M.  22,  S.  C;  R.  v.  Pollard,  8  C.  &  P.  553,  per 
Tindal,  C.  J.,  and  Vaughan,  J.,  in  a  case  of  arson  where  the  husband  was  bed- 
ridden.    See  also  R.  v.  Smith,  Ir.  Cir.  R.  459. 

'  R.  V.  Stapleton,  Jebb,  C.  C.  93. 

14  LAW  OF  EVID. — v.  I.  (3075) 


210  COERCION  OF  MARRIED  WOMEN.  [PART 1. 

question  was  always  one  to  be  determined  by  the  jury  on  the 
evidence  submitted  to  them.  It  seems  that  a  married  woman  can- 
not be  convicted  under  any  circumstances  as  a  receiver  of  stolen 
goods,  when  the  property  has  been  taken  by  her  husband,  and  given 
to  her  byhim  ; '  nor — prior  to  the  1st  of  January,  1883," — could  she 
have  been  convicted  of  stealing  her  husband's  goods,  though  she 
might  have  committed  adultery  and  have  absconded  with  her 
paramour,  taking  the  goods  with  her.^  This  last  rule,  however, 
has  now  been  happily  abrogated  by  the  "Married  Women's 
Property  Act,  1882." ' 

§  191.  Whether  the  doctrine  of  coercion  extends  to  any  misde-  |  152 
meanors  may  admit  of  some  doubt,  but  the  better  opinion  seems  to 
be,  that,  provided  the  misdemeanor  be  of  a  serious  nature,  as,  for 
instance,  the  uttering  of  base  coin,^  the  wife  will  be  protected  in 
like  manner  as  in  cases  of  felony,  although  it  has  been  distinctly 
held  that  the  protection  does  not  extend  to  assaults  and  batteries,* 
or  to  the  offence  of  keeping  a  brothel.'  Indeed,  it  is  probable  that  in 
all  inferior  misdemeanors,  this  presumption,— if  admitted  at  all, — 
would  be  held  liable  to  be  defeated  by  far  less  stringent  evidence 
of  the  wife's  active  co-operation  than  would  suffice  in  cases  of 
felony.^ 

§  192.  If  an   action  be   brought  against   a  husband  for  goods    «  J53 
supplied  to  his  family  or  his  wife,  on   the  order  of  the  latter,  the 
jury  will  do  w^ell  to  infer,  in   the   absence  of  evidence  to  the  con- 
trary, that  the  wife  gave  the  order  as  the  husband's  agent,  provided 
she  were  living  v^ith  him  at  the  time,  and  the  articles  w^ere  neither 

1  R.  V.  Brooks,  Pearce  &  D.  184.  See  R.  v.  Wardroper,  Bell,  C.  C.  249 ; 
8  Cox,  284,  S.  C. 

^  When  the  Married  Women's  Property  Act,  |1882,  came  into  operation, 
45  &  46  v.,  c.  75,  |  25. 

*  R.  V.  Kenny,  46  L.  J.,  M.  C.  156  ;  13  Cox,  397  ;  and  L.  R.,  2  Q.  B.  D. 
307,  S.  C. 

*  45  &  46  v.,  c.  75,  U  12,  16  ;  R.  r.  Brittleton,  per  Ct.  of  Crim.  App., 
L.  R.,  12  Q.  B.  D.  266.     53  L.  J.,  M.  C.  83,  S.  C.  ;  and  15  Cox,  431. 

^  R.  I'.  Conolly,  2  Lew.  C.  C.  229,  per  Bayley,  J.  ;  R.  v.  Price,  8  C.  &  P.  19 ; 
Anon.,  Ir.  Cir.  R.  374. 

«  R.  v.  Cruse,  8  C.  &  P.  541  ;  2  Moo.  C.  C.  53,  S.  C.  ;  R.  v.  Ingram,  1  Salk. 
384.  '  R.  V.  Williams,  10  Mod.  63  ;  4  Bl.  Com.  29. 

»  R.  V.  Cruse,  8  C.  &  P.  541  ;  2  Moo.  C.  C.  53,  S.  C. 

(3076) 


CHAP,  v.]        PRESUMPTIVE   AGENCY   OF  MARRIED   WOMEN.  211 

excessive  in  quantity,  improvident  in  quality,  nor  extravagant  in 
price  '  But  this  presumption  may  always  be  rebutted  by  proof  that 
the  husband,  while  supplying  his  wife  with  an  adequate  allowance, 
has  expressly  forbidden  her  to  pledge  his  credit  even  for  necessaries; 
and  that,  too,  though  the  tradesman  may  have  had  no  knowledge 
whatever  of  the  husband's  prohibition.^  If  the  debt  has  been 
incurred  by  the  wife  while  living  separate  from  her  hnsband,  the 
doctrine  of  presumptive  agency  will  depend  on  the  cause  of  separa- 
tion. If  the  wife  has  been  turned  out  of  doors  or  deserted  by  the 
husband,  or  if  she  has  left  him  because  his  misconduct  was  such 
as  to  render  it  impossible  for  her  to  remain  under  his  roof,'  she 
has  by  law  an  implied  authority  to  pledge  his  credit  for  necessaries,* 
whether  supplied  to  herself  or  to  her  infant  child,^  unless  by  an 
adequate*^  allow^nce  from  her  husband,  or  by  the  terms  of  her 
settlement,  or  perhaps  by  her  own  exertions,  she  be  in  a  position 
to  provide  for  her  maintenance.'  On  the  other  hand,  a  wife  who 
leaves  her  husband  without  his  consent,  and  without  justifiable 
cause,  has  no  authority  whatever  to  bind  him  by  her  contracts  ;  * 
and  where  the  husband  and  wife  have  parted  by  mutual  consent,  and 

'  Lane  v.  Ironmonger,  13  M.  &  W.  368,  recognising  Freestone  v.  Butcher, 
9  C.  &.  P.  637,  per  Ld.  Abinger;  Atkins  v.  Curwood,  7  C.  &  P.  757;  Johnston 
V.  Sumner,  3  H.  &  N.  261 ;  Morgan  v.  Chetwynd,  4  Fost.  &  Fin.  451,  per 
Cockhurn,  C.  J.;  Waitman  v.  Wakefield,  1  Camp.  120;  Manby  v.  Scott,  2 
Smith,  L.  C.  419—422,  in  n.  See  Reneaux  v.  Teakle,  8  Ex.  R.  680;  Philip- 
son  V.  Hayter,  40  L.  J.,  C.  P.  14;  6  Law  Rep.,  C.  P.  38,  S.  C.  nom.  Philipson 
V.  Hayter;  Moylan  r.  Nolan,  17  Ir.  Law  R.,  N.  S.  427;  Reid  t;.  Teacle,  13 
Com.  B.  627;  Ruddock  v.  Marsh,  1  H.  &  N.  601;  Jewsbury  v.  Newbold,  26 
L.  J.,  Ex.  247  ;  and  post,  U  770,  771,  842. 

2  Debenham  v.  Mellon,  50  L.  J.,  Q.  B.  155  per  Dom.  Proc;  L.  R.,  6  AT)p. 
Cas.  24,  S.  C.  ;  L.  R.,  5  Q.  B.  D.  394,  per  Ct.  of  App.;  49  L.  J.,  Q.  B.  497, 
S.  C;  Jolly  V.  Rees,  33  L.  J.,  C.  P.  177.;  15  Com.  B.,  N.  S.  628,  S.  C;  Ryan 
V.  Nolan,  I.  R.,  3  C.  L.  319.;  Jetley  v.  Hill,  1  Cab.  &  El.  239  per  Pollock,  B. 

^  Bazeley  v.  Forder,  3  Law  Rep.,  Q.  B.  562,  per  Blackburn,  J.;  9  B.  &  S- 
602,  S.  C,  and  37  L.  J.,  Q.  B.  240,  S.  C.  nom.  Ba.seley  v.  Forder. 

*  Wilson  V.  Ford,  3  Law  Rep.,  Ex.  63;  37  L.  J.,  Ex.  60,  S.  C.  As  to  bow 
far  this  doctrine  applies  to  cases  where  the  wife  has  retained  a  solicitor  to 
act  for  her  in  divorce  or  other  legal  proceedings  against  her  husband,  see 
Ottawayr.  Hamilton  47  L.  J.  Q.  B.,  725,  per  Ct.  of  App.;  Mecredy  r.  Taylor, 
I.  R.,  7  C.  L.  256  Shepherd  v.  Mackoul,  3  Camp.  326;  Brown  v.  Ackroyd,  5 
E.  &  B.  819;  Grindell  v  Godmond,  5  A.  &  £.  755. 

5  Bazeley  v.  Forder,  3  Law  Rep.,  Q.  B.  559;  9  B.  &  S.  599,  S.  C;  and  37 
L.  J.,  Q.  B.,  237,  S.  C.  nom.  Baseley  v.  Forder. 

6  Baker  v.  Sampson,  14  Com.  B.,  N.  S.  383. 

^  Johnston  v.  Sumner,  3  H.  &  N.  261.  ^  Id. 

(3077) 


212  PRESUMPTIVE  AGENJY  OF  MARRIED  WOMEN.  [PAET  I. 

the  wife  has  afterwards  incurred  a  debt  for  articles  suitable  to  her 
degree,  the  creditor,  before  he  can  recover  from  the  husband,  must 
affirmately  show  either  an  express  authority  from  him.  or  at  least 
such  circumstances  as  will  justify  the  jury  in  implying  an  authority; 
for  instance,  that  the  wife  has  been  left  without  adequate  means  of 
support,  or  that  an  allowance  promised  to  her  by  the  husband 
had  not  been  paid.'  It  may  here  be  noticed  that  the  authority  of 
a  wife  to  pledge  her  husband's  credit  is  no  greater  when  he  is  a 
lunatic  than  when  he  is  sane.^ 


§  193.  Though  a  wife  may  often  have  an  implied  authority  from  g  issaj 
her  husband  to  procure  goods  on  credit,  an  English  court  of  law 
would  never,  under  the  old  system,  presume  that  she  was  his  agent 
for  the  purpose  of  horroiving  money;  and  even  though  she  were 
turned  out  of  doors  without  any  misconduct  on  her  part,  and  without 
any  means  of  livelihood,  her  husband  could  not  be  held  liable  at  law 
for  money  lent  to  her,  notwithstanding  she  might  have  expended  the 
whole  of  it  in  procuring  the  actual  necessaries  of  life.^  As  this 
doctrine  savoured  rather  of  the  common  law  than  of  common  sense, 
it  found  no  countenance  in  courts  of  equity;  and  a  creditor  who  had 
been  nonsuited  on  the  above  ground  by  a  learned  justice  or  baron, 
might  still  have  obtained  his  rights, — though  tardily,  — at  the  hands 
of  a  vice-chancellor.*  A  more  reputable  state  of  the  law  at  present 
prevails,  and  the  judges, — rejecting  the  distinction  between  accredit- 
ing a  wife  to  supply  herself  with  necessaries,  and  accrediting  a 
*'  neighbour"  to  supply  a  wife  with  money  for  the  same  purpose, — ■ 
must  henceforth  adopt  the  rules  of  equity  as  their  guide  in  this 
matter.^ 


'  Johnston  v.  Sumner,  3  H.  &  N.  2G1  ;  Biffin  v.  Bignell,  7  H.  &  N.  877  ; 
Eastland  v.  Burehell,  L.  R.,  3  Q.  B.  D.  432  ;  47  L.  J.,  Q.  B.  500,  S.  C.  See 
Manby  v.  Scott,  2  Smith,  L.  C.  422—430.  • 

2  Richarrts.)n  v.  Du  Bois,  5  Law  Rep.,  Q.  B.  51  ;  39  L.  J.,  Q.  B.  69;  and  10 
B.  &  S.  830,  S.  C.     See  Drew  v.  Nunn,  L.  R.,  4  Q.  B.  D.  661,  per  Ct.  of  App. 

3  Knox  V.  Bushell,  3  Com.  B.,  N.  S.  334. 

*  .Tenner  v.  Morris,  30  L.  J.,  Ch.  361  ;  2  De  Gex,  F.  &  J.  45,  S.  C.  See 
Davidson  v.  Wood,  2  Ncav  R.  15,  per  Wood,  V.-C;  S.  C.  cor.  Lds.  Js.,  1  De 
Gex,  J.  &.  S.  465,  nom.  In  re  Wood's  estate. 

*  This  was  the  old  law  in  Ireland,  Johnson  v.  Manning,  12  Ir.  Law  R., 
N.  S.  148. 

(3078) 


CHAP,  v.]     PRESUMPTIONS    AS    TO    IMPOTENCE — SENIORITY.  213 

§  194.  In  suits  for  nullity  of  marriage  on  the  ground  of  incurable  §  153b 
impotence,  the  Matrimonial  Court  has  of  old  time  adopted  for  its 
guidance  a  somewhat  fantastic  rule;  for  where  the  marriage  has 
not  been  consummated,  and  no  visible  defect  is  proved  to  exist  in 
either  party,'  impotence  is  presumed  after,  but  not  before,  the 
expiration  of  three  years  of  ineffectual  cohabitation.^  This  rule, 
however,  only  applies  where  the  impotence  is  left  to  be  presumed 
from  continual  non-consummation;  for  the  court  will  never  call  in 
its  aid,  and  still  less  rely  on  its  twilight  guidance,  when  other 
evidence  on  the  subject  can  be  obtained.^ 

§  195.  The  presumptions  with  respect  to  parent  and  child  are  «  J54 
not  very  important.  The  law  so  far  recognises  the  superiority 
of  age  over  youth,  that  if  a  parent  and  a  child  both  bear  the 
same  Christian  and  surname,  and  this  name  occur  in  an  instru- 
ment without  any  addition  of  "senior"  or  "junior,"  it  will  be 
presumed,  in  the  absence  of  evidence  to  the  contrary,  that  the 
parent  was  intended.*  Thus,  if  a  legacy  be  left,  or  a  note  be 
made  payable,  to  John  Holland,  and  there  be  two  of  that  name, 
father  and  son,  the  law  will,  prima  facie,  presume  that  the  father 
is  respectively  the  legatee  or  payee;  but  this  presumption  may 
readily  be  rebutted,  as  for  instance,  in  the  case  of  the  will,  by 
proving  that  the  testator  did  not  know  the  father,^  or  in  the  case 
of  the  note,  by  showing  that  the  son  had  had  it  in  his  possession, 
or  had  indorsed  it,  or  had  given  instructions  to  bring  an  action 
upon  it.^  The  mere  moral  obligation  of  a  parent  to  maintain  his 
child  affords  no  legal  inference  of  a  promise  to  pay  a  debt  con- 
tracted by  him  even  for  necessaries.^ 


^  See  D.,  falsely  called  F.  &  F.,  34  L.  J.,  Pr.  &  Matt.  66;  B.,  falsely  called 
B.  V.  B.,  I.  E.  9  Eq.  551. 

^M.,  falsely  called  H.  v.  H.,  33  L.  J.,  Pr.  &  Mat.  159;  3  Swab.  &  Trist. 
517,  S.  C. ;  Lewis,  falsely  called  Hay  ward  v.  Hay  ward,  35  L.  J.,  Pr.  &  Mat. 
105,  in  Dom.  Proc. 

=*  F.,  falsely  called  D.  v.  D.,  4  Swab.  &  Trist.  86. 

*  Stebbing  v.  Spicer,  8  Com.  B.  827 ;  Lepiot  v.  Browne,  1  Salk.  7 ;  Sweet- 
ing V.  Fowler,  1  Stark.  R.  106 ;  Jarmain  v.  Hooper,  6  M.  &  Gr.  827. 

*  Lepiot  V.  Browne,  1  Salk.  7. 

«  Stebbing  v.  Spicer,  8  Com.  B.  827 ;  Sweeting  v.  Fowler,  1  Stark.  R.  106. 
^  Shelton  v.  Springett,  11  Com.  B.  452 ;  recognising  Mortimore  v.  Wright, 

(3079) 


214  PRESUMPTIONS    IN    FAVOUR    OF    IMMUTABILITY.         [PART  I. 

§  196.^  Other  presumptions  are  founded  on  the  experienced  g  148 
continuance,  or  immutability,  for  a  longer  or  shorter  period,  of 
human  affairs.^  When,  therefore,  the  existence  of  a  person,  or 
personal  relation,  or  a  state  of  things,  is  once  established  by 
jDroof,  the  law  presumes  that  the  person,  relation,  or  state  of 
things  continues  to  exist  as  before,  till  the  contrary  is  shown,  or 
till  a  different  presumption  is  rais3d,  from  the  nature  of  the  sub- 
ject in  question.^  Thus,  where  a  jury  found  that  a  certain  custom 
existed  up  to  the  year  1689,  the  court  held,  that,  in  the  absence 
of  all  evidence  of  its  abolition,  this  was  in  legal  effect  a  verdict 
finding  that  the  custom  still  subsisted  at  the  time  of  the  trial 
in  1840/  So,  in  settlement  cases,  the  court  will  presume  that 
a  son,  though  long  since  arrrived  at  manhood,  has  continued 
unemancipated,  as  in  the  days  of  his  infancy,  unless  there  be  some 
evidence  to  rebut  this  presumption,  as,  for  instance,  if  proof  be 
given  that  he  has  separated  from  his  family/  So,  in  the  absence 
of  evidence  to  the  contrary,  the  settlement  of  a  pauper,*^  or  the 
appointment  of  a  party  to  an  official  situation,  will,^  at  least  for 
a  reasonable  time,  be  presumed  to  remain  in  force.  So,  a  partner- 
ship, agency,  tenancy,^  or  other  similar  relation,  once  shown  to 
exist,  is  presumed  to  continue,  till  it  is  proved  to  have  been  dis- 
solved; and,  therefore,  where  a  partnership  was  admitted  to  have 
been  in  existence  in  1816,  it  was,  in  the  absence  of  all  evidence  to 
the  contrary,  presumed  to  be  still  continuing  in  1838.'     So,  when 

6  INI.  &  W.  482,  and  overruling  Baker  v.  Keene,  2  Stark.  R.  501  ;  Blackburn 
V.  Mackey,  1  C.  &  P.  1 ;  Law  v.  Wilkin,  6  A.  &  E.  718  ;  1  N.  &  P.  697,  S.  C. 
See  Bazeley  v.  Forder,  3  Law  Rep.,  Q.  B.  559  ;  9  B.  &  S.  599,  S.  C,  37  L.  J., 
Q.  B.  2.37,  S.  C.  nom.  Baseley  v.  Forder. 

'  Gr.  Ev.  ?  41,  as  to  first  seven  lines.  ^  6  Com.  B.  630. 

3  See  Price  v.  Price,  16  M.  &  W.  232,  240—242,  overruling  Mercer  v.  Cheese, 
4  M.  &  Gr.  804.     See,  also,  The  Gananogue,  Lush.  Adm.  R.  448. 

*  Scales  V.  Key,  11  A.  &  E.  819. 

^  R.  V.  Lilleshall,  7  Q.  B.  158,  explaining  R.  v.  Oulton,  5  B.  &  Ad.  958  ;  3 
N.  &  M.  62,  S.  C.  «  R.  V.  Tanner,  1  Esp.  306,  per  Ashhurst,  J. 

'  R.  V.  Budd,  5  Esp.  230,  per  Ld.  Ellenborough. 

**  See  Pickett  v.  Packham,  4  Law  Rep.    Ch.  Ap.  190. 

"  Clark  V.  Alexander,  8  Scott,  N.  R.  161.  See,  also,  Aldenson  v.  Clay,  1 
Stark.  R.  405  ;  Blandy  v.  De  Burgh,  6  Com.  B.  623,  630  ;  and  Parsons  v. 
Hay  ward,  31  L.  J.,  Ch.  666.  So,  by  the  Hindoo  law,  a  family  once  joint  is 
presumed  to  retain  that  status,  unless  evidence  can  be  given  to  show  that  it 
has  become  divided,  Mussumat  Cheetha  v-  Baboo  Miheen  Lall,  11  Moo.  Ind. 
App.  C.  369,  380. 

(3080) 


CHAP   v.]         PRESUMPTIONS   IN  FAVOUR   OF   IMMUTABILITY.  215 

a  business  is  carried  on  by  partners  after  the  expiration  of  the 
term  limited  by  the  articles,  the  law  prima  facia  presumes,  that 
such  of  the  provisions  of  those  articles,  as  are  not  inconsistent  with 
a  partnership  at  will,  still  continue  to  apply  ;  however  difficult  it 
may  be,  in  some  cases,  to  determine  what  provisions  fall  within  this 
category.'  So,  if  a  man  were  on  several  occasions  to  authorise  his 
mistress  to  order  goods  from  a  tradesman  on  his  credit,  the  jury 
would  be  amply  justified  in  finding  him  liable  for  articles  supplied 
after  the  termination  of  the  connexion,  in  the  absence  of  any  proof 
that  the  tradesman  had  received  notice  of  such  termination.^ 


§  197.  So,  if  a  debt  be  shown  to  have  once  existed,  its  continuance  ^  155 
will  be  presumed,  in  the  absence  of  proof  of  payment,  or  some 
other  discharge.^  So,  where  a  tenant  holds  over  after  the  expira- 
tion of  the  term,  he  impliedly  holds  subject  to  all  the  covenants 
in  the  lease  which  are  applicable  to  his  new  situation  ;  *  and  this 
presumption  still  prevails,  though  the  rent  has  been  advanced,^ 
and  though  the  original  lessor  has  assigned  his  interest  to  a  third 
party,  or,  being  a  clergyman,  has  resigned  his  living,  and  a  fresh 
incumbent  has  succeeded  him.^  The  opinions,'  also,  of  individuals, 
once  entertained  and  expressed,  and  their  state  of  mind,  once 
proved  to  exist,  are, — in  startling  opposition  to  the  practical 
experience  of  mankind,  at  least  in  this  the  ninetieth  century, — 
presumed  to  remain  unchanged,  till  the  contrary  appears.  Thus, 
all  the  members  of  a  Christian  community  being  presumed  to 
entertain  the  common  faith,  no  man  is  supposed  to  disbelieve  the 


1  Cox  V.  Willoughby;  L.  R.,  13  Ch.  D.  863,  per  Fry,  J.;  49  L.  J.,  Ch.  237, 
S.  C. ;  Clark  v.  Leach,  32  L.  J.,  Ch.  290 ;  32  Beav.  14,  S.  C. ;  1  De  Gex,  J.  &  S. 
409,  S.  C.     See  Woods  v.  Lamb,  35  L.  J.,  Ch.  309,  per  Wood,  V.  C. 

2  Ryan  v.  Sams,  12  Q.  B.  460. 

^  Jackson  v.  Irvin,  2  Camp.  50,  per  Ld.  Ellenborough. 

*  Torriano  v.  Young,  6  C.  &  P.  8 ;  Thomas  v.  Packer,  1  H.  &  N.  6G9 ;  23 
&  24  v.,  c.  154,  ?  5,  Ir.  But  see  Oakley  r.  Monck,  34  L.  J.,  Ex.  137;  3  H. 
&  C.  706,  S.  C;  35  L.  J.,  Ex.  87,  S.  C.  in  Ex.  Ch.;  1  Law  R.,  Ex.  159;  and 
4  H.  &  C.  251,  S.  C. 

^  Digby  V.  Atkinson,  4  Camp.  275,  per  Ld.  Ellenborough  ;  explained  in 
Johnson  v.  St.  Peter,  Hereford,  4  A.  &  E.  525,  55^6. 

«  Button  V.  Warren,  1  M.  &  W.  466.  See  Thetford  v.  Tyler,  8  &.  B.  95, 
100,  101. 

"•  Gr.  Ev.  §  42. 

(3081) 


216       PRESUMPTIONS  AS  TO  CONTINUANCE  OF  LIFE.    [PAET  I. 

existence  and  moral  government  of  God  till  it  is  shown  from  his 
own  declarations.'  In  like  manner,  every  man  is  presumed  to  be  of 
sane  mind,  till  the  contrary  is  shown  f  but  if  any  derangement  or 
imbecility  is  proved  or  admitted  at  any  particular  period,  it  is 
presumed  to  continue,  till  disproved,^  unless,  it  be  obviously  of  a 
partial  or  temporary  character/ 

§  198.  So,  where  a  person  is  once  shown  to  have  been  living,  ^  156 
the  law,  in  the  absence  of  proof  that  he  has  not  been  heard  of 
within  the  last  seven  years,  will  in  general  presume  that  he  is  still 
alive  :^  unless  after  a  lapse  of  time  considerably  exceeding  the 
ordinary  duration  of  human  life.  In  the  civil  law  the  legal  pre- 
sumption of  life  ceases  at  the  expiration  of  one  hundred  years 
from  the  date  of  the  birth,^  and  the  same  rule  appears  to  have  been 
adopted  in  Scotland,"  but  in  England,  no  definite  period  has  been 
conclusively  fixed,   during  which    the  presumption    is  allowed   to 

*  The  State  v.  Stinson,  7  Law  Keporter,  383. 

'^  Dyce,  Sombre  v.  Troup,  Deaue,  Ec.  R.  38,  per  Sir  J.  Dodson.  In  Sutton 
V.  Sadler,  26  L.  J.,  C.  P.  284  ;  3  Com.  B.,  N.  S.  87,  S.  C,  the  court  held  that 
this  presumption  was  one  of  fact,  which  ought  not  to  influence  the  jury  in 
a  case  of  conflicting  evidence.  See,  also,  Anderson  v.  Gill,  3  Macq.,  Sc.  Cas. 
H.  of  L.  197,  per  Ld.  AVensleydale ;  Crowninshield  v.  Crowninshield,  2  Gray, 
524. 

=*  Att.-Gen.  v.  Parnther,  3  Br.  C.  C.  443  ;  Grimani  v.  Draper,  6  Ec.  &  Mar. 
Cas.  421,  422,  441,  per  Sir  H.  Fust;  Johnson  v.  Blane,  id.  457,  461,  per  id.; 
Dyce  Sombre  v.  Troup,  Deane,  Ec.  R.  49,  50,  per  Sir  J.  Dodson ;  Prinsep  & 
East  India  Co.  v.  Dyce  Sombre,  10  Moo.  P.  C.  R.  232,  244—247  ;  Nicholas 
&  Freeman  v.  Binns,  1  Swab.  &  Trist.  243,  per  Sir  C.  Cresswell  ;  Hassard  v. 
Smith,  I.  R.  6  Eq.  429  ;  Blake  v.  Johnson,  Milw.  Ec.  Ir.  R.  164—166  ;  Smith 
V.  Tebbitt,  1  Law  Rep.,  P.  &  D.  398,  434. 

*  Walcot  V.  Alleyn,  Milw.  Ec.  Ir.  R.  69 ;  Legeyt  v.  Obrien,  id.  334—337 ; 
Airey  v.  Hill,  2  Add.  209  ;  Wliite  v.  WiLson,  13  Ves.  87  ;  Hall  v.  Warren,  9 
Ves.  605,  611, 

^  See,  however,  R.  v.  Lumley,  1  Law  Rep.,  C.  C.  196  ;  38  L.  J.  M.  C.  86; 
11  Cox,  274,  S.  C,  cited  ante,  I  114. 

*  Vivere  etiam  usque  ad  centum  annos  quilibet  pra;sumitur,  nisi  probetur 
mortuns.  Corpus  Juris  Glos.satum,  tom.  2,  p.  718,  n.  5  ;  1  Masc.  de  Prob. 
concl.  103,  n.  5 ;  Campegius  Tract,  de  Test.  reg.  350. 

'  Morison,  Presump.  xvi.,  Carstairs  v.  Stewart,  1731  ;  Hubb.,  Ev.  of  Sue. 
168.  Mr.  Dickson  in  his  most  valuable  work  on  the  Law  of  Evid.  in  Scot- 
land, states  that,  "a  precise  limit  to  this  presumption  has  not  been  fixed.'' 
1  vol.,  p.  183.  For  other  foreign  laws  on  the  same  subject,  see  Hubb.,  Ev. 
of  Sue.  758,  759. 

(3082) 


CHAP,  v.]        PRESUMPTIONS  AS  TO  CONTINUANCE  OF  LIFE.  217 

prevail.  In  several  old  cases,  where  feoffments  for  terms  varying 
from  ninety-nine  to  eighty  years  had  been  made  to  particular 
tenants,  the  possibility  of  their  surviving  the  expiration  of  the 
terms  was  neglected  in  determining  the  nature  of  the  remainders  ;^ 
and  the  book  of  a  tithe-collector,  written  seventy- four  years  before, 
has  been  admitted  in  evidence,  without  proof  that  any  inquiries 
had  been  made  for  the  writer.^  Nay,  in  one  case  a  receiver's 
account  was  allowed  to  be  read  after  the  lapse  of  fifty-four  years 
only,  though  no  proof  was  tendered  respecting  the  writer's  death. ^ 

§  199.  On  the  other  hand,  where  a  term  was  for  sixty  years,  the  ?  156 
court  took  into  consideration  the  possibility  of  the  termor  living  after 
its  expiration  ;*  and  the  deposition  of  a  witness  taken  sixty  years 
before  the  trial  has  been  rejected,  no  search  having  been  made  for 
the  deponent,  and  no  account  being  given  of  him.^  In  an  action  of 
ejectment,  where  the  lessor  of  the  plaintiff,  to  prove  his  title,  put  in 
a  settlement  130  years  old,  by  which  it  appeared  that  the  party 
through  whom  he  claimed  had  four  elder  brothers,  the  jury  were 
allowed  to  presume,  not  only  that  these  persons  were  dead,  but,  in 
the  absence  of  all  evidence  to  the  contrary,  that  they  had  died  un- 
married and  without  issue.*^  This  case  would  probably  be  considered 

'  Weale  v.  Lower,  Pollex.  G7,  per  Ld.  Hale ;  Napper  v.  Sanders,  Hutt. 
119 ;  Ld.  Derby's  case,  Lit.  R.  370. 

■•^  Jones  V.  Waller,  1  Price,  229.  See,  also,  Doe  v.  Davies,  10  Q.  B.  314,  324, 
325.  ^  Doe  v.  Michael,  17  Q.  B.  276. 

*  Beverley  v.  Beverley,  2  Vern.  131  ;  Doe  v.  Andrevs^s,  15  Q.  B.  756. 

*  Benson  v.  Olive,  2  Str.  920 ;  Manby  v.  Curtis,  1  Price,  225. 

«  Doe  V.  Deakin,  3  C.  &  P.  402 ;  8  B.  &  C.  22,  S.  C,  nom.  Doe  v.  Wolley. 
There  Bayley,  J.,  in  stating  that  the  jury  had  properly  made  this  presump- 
tion, relied  on  the  general  rule,  that  things  must  be  presumed  to  remain  in 
the  same  state  in  which  they  were  proved  to  have  once  been,  unless  there  is 
some  evidence  of  a  subsequent  alteration,  3  C.  &  P.  403 ;  but  it  is  submitted 
that  the  rule  was  in  this  case  strained  somewhat  beyond  its  legitimate  extent ; 
for  if  presumptions  are  founded,  as  they  should  be,  on  the  exj^erienced  course 
of  events,  it  was  surely  more  probable  that  one  out  of  four  brothers  should 
marry  and  have  children,  than  that  they  should  all  die  unmarried.  In  Doe  v. 
Griffin,  15  East,  293,  where  a  similar  question  arose,  evidence  negativing  the 
marriage  of  the  party,  who  was  presumed  to  have  died  without  issue,  was 
given  ;  and  in  Richards  v.  Richards,  id.  294,  n.  a,  where  the  lessor  of  the 
plaintiff  claimed  as  heir  by  descent,  and  proved  the  death  of  his  elder 
brothers,  the  court  held  that  he  must  further  show  that  they  died  without 
issue,    since   in    ejectment  no   presumption   could   be  admitted   against  the 

(3083) 


218  PRESUMPTIONS  AS  TO  CONTINUANCE  OF  LIFE.  [pART  I. 

at  the  present  day  as  carrying  the  law  of  presumptions  somewhat 
beyond  its  legitimate  bounds,  but  this  much  is  clear,  that,  whenever 
it  becomes  necessary  to  prove  the  exhaustion  of  remote  branches  of 
a  family,  the  jury  may  safely  be  advised  to  act  on  very  slight 
evidence,  such,  for  example,  as  unanswered  advertisements  or 
ineffectual  inquiries.' 

§  200.  Although  the  presumption  of  life  will  continue  for  a  §  137 
period  exceeding  half  a  century,  if  no  proof  be  given  either  that 
the  party,  whose  death  is  relied  upon,  has  not  been  heard  of  by 
those  persons  who  would  naturally  have  heard  of  him  had  he  been 
alive,  or,  at  least,  that  search  has  been  ineffectually  made  to  find 
him," — this  presumption  will  be  bounded  within  far  shorter  limits, 
if  evidence  be  furnished  of  his  continuous  unexplained  absence 
from  home,  and  of  the  non-receipt  of  intelligence  concerning  him. 
In  such  case,^  after  the  lapse  of  seven  years,  the  presumption  of  life 
ceases,  and  the  burthen  of  proof  is  devolved  on  the  party  denying  the 
death.*  This  period  was  inserted  in  the  old  statute  of  Charles  II. 
concerning  leases  for  lives,'*  and  it  has  since  been  adopted,  by 
analogy,  in  other   cases.^     It   is    also   recognised   in   the   various 

person  in  possession.  See,  In  re  Webb's  estate,  Ir.  R. ,  5  Eq.  235 ;  Mullaly 
V.  Walsh,  I.  R.  6  C.  L.  314. 

1  Greaves  v.  Greenwood,  46  L.  J.,  Ex.  252,  per  Ct.  of  App.;  L.  R.,  2  Ex.  D. 
289,  S.  C.  2  j)og  ^  Andrews,  15  Q.  B.  756. 

=*  Gr.  Ev.  I  41,  in  part. 

*  Hopewell  v.  De  Pinna,  2  Camp.  113 ;  Rust  v.  Baker,  8  Sim.  443  ;  Loring 
V.  Steineman,  1  Mete.  204.  See  Bowden  v.  Henderson,  2  Sm.  &  Gifl'.  360, 
■where  it  was  held,  that  the  presumption  of  death  after  seven  years'  absence 
does  not  arise,  if  the  iirobability  of  the  exile  sending  intelligence  home  be 
rebutted  by  circumstances.  See  also  M'Mahon  v.  M'Elroy,  I.  R.,  5  Eq.  1 ; 
Prudential  Ass.  Co.  v.  Edmonds,  L.  R. ,  2  Apii.  Cas.  487,  per  Dom.  Proc. 

»  19  C.  2,  c.  6,  §  2.  See  also  6  A.,  c.  18,  which  is  entitled,  "An  Act  for 
the  more  effectual  discovery  of  the  death  of  persons  pretended  to  be  alive, 
to  the  prejudice  of  those  who  claim  estates  after  their  deaths." 

^  Doe  V.  Jesson,  6  East,  85;  Doe  v.  Deakin,  4  B.  &,  A.  433;  King  v.  Paddock, 
18  Johns.  141.  In  Scotland  the  law  on  this  subject  will  be  found  embodied 
in  "The  Presumption  of  Life  Limitation  (Scotland)  Act,  1881,"  44  &  45  V., 
c.  47.  See  especially  ^  8.  In  America  it  is  not  necessary  that  the  party  be 
proved  to  be  absent  from  the  United  States;  it  is  sufficient  if  it  appears  that 
he  has  been  absent  for  seven  years  from  the  particular  State  of  his  residence, 
without  having  been  heard  of,  Newman  v.  Jenkins,  10  Pick.  515  ;  Innis  v. 
Campbell,  1  Rawle,  .373 ;  SpuiT  v.  Trimble,  1  A.  K.  Marsh.  271 ;  Wambough 
V.  Shenk,  1  Penningt.   1G7 ;  Woods  r.   Woods,  2  Bay,   476.     In  the  N.  York 

(3084) 


CHAP,  v.]  PRESUMPTIONS  AS  TO  CONTINUANCE  OF  LIFE.  219 

Acts  relating  to  bigamy  ;'  and  if,  on  an  indictment  for  that  crime, 
it  appear  that  the  prisoner  and  his  first  wife  had  lived  apart  for 
seven  years  before  he  married  again,  mere  proof  that  the  first  wife 
was  alive  at  the  time  of  the  second  marriage  will  not  warrant  a 
conviction,  but  some  affirmative  evidence  must  be  given  to  show 
that  the  accused  was  aware  of  this  fact."  But  although  a  person, 
who  has  not  been  heard  of  for  seven  years,  is  presumed  to  be  dead, 
the  law  raises  no  presumption  as  to  the  time  of  his  death  ;  and 
therefore,  if  any  one  has  to  establish  the  precise  period  during 
those  seven  years,  at  which  such  person  died,  he  must  do  so  by 
evidence,  and  can  neither  rely,  on  the  one  hand,  upon  the  pre- 
sumption of  death,  nor  on  the  other,  upon  the  presumption  of  the 
continuance  of  life.^ 

Civ.  Code,  the  presumption  is  tlius  briefly  expressed  : — "  That  a  persou  uot 
heard  fi'om  in  seven  years  is  dead  ;  "  §  1780,  art.  26.  As  to  cases  where  the 
presumption  of  life  conflicts  with  that  of  innocence,  see  |  114,  ante. 

M  J.  1,  c.  11,  §  2  ;  9  G.  4,  c.  31,  §  22  ;  24  &  25  V.,  c.  100,  ?  57. 

'^  R.  V.  Curgenwen,  35  L.  J.,  M.  C.   58;    10  Cox,  152,  S.  C.  ;  1  Law  Rep., 

C.  C.  1,  S.  C.     See  R.  v.  Jones,  52  L.  J.,  M.  C.  96  ;  15  Cox,  284,  S.  C. 

^  Phene's  Trusts,  re,  5  Law  Rep.,  Ch.  Ap.  139;  39  L.  J.,  Ch.  316,  S.  C.  ; 
Lewes's  Trusts,  re,  11  Law  Rep.,  Eq.  236  ;  6  Law  Rep.,  Ch.  Ap.  356,  and  40 
L.  J.,  Ch.  602,  S.  C.  ;  Corbishley's  Trusts,  re,  49  L.  J.,  Ch.  266  ;  L.  R.,  14 Ch. 

D.  846,  S.  C.  ;  Hickman  v.  Upsall,  20  Law  Rep.,  Eq.  136  ;  46  L.  J.,  Ch.  245, 
S.  C.  on  App.  ;  Lambe  v.  Orton,  29  L.  J.,  Ch.  286  ;  Pennefather  v.  Penne- 
father,  I.  R.  6  Eq.  171  ;  Thomas  v.  Thomas,  2  Drew.  &  Sm.  298  ;  In  re 
Benham's  Trusts,  37  L.  J.,  Ch.  265,  jjer  Rolt,  L.  J.,  reversing  decision  by 
Malins,  V.-C,  as  reported  in  36  L.  J.,  Ch.  502  ;  4  Law  Rep.  Eq.  416,  S.  C.  ; 
In  re  Peck.  29  L.  J.,  Pr.  &  Mat.  95  ;  In  re  Nichols,  41  L.  J.,  Pr.  &  Mat.  88  ; 
Dunn  V.  Snowden,  32  L.  J.,  Ch.  104  ;  2  Drew.  &  Sm.  201,  S.  C.  ;  Doe  v. 
Nepean,  5  B.  &  Ad.  86;  2  N.  &  M.  219,  S.  C.  ;  Nepean  v.  Doe  d.  Knight,  2 
M.  &  W.  894,  in  Ex.  Ch.  ;  2  Smith,  L.  C.  476,  492,  577,  S.  C.  In  that  case 
Ld.  Denman,  in  pronouncing  the  judgment  of  the  court,  observes — "  It  is 
true  the  doctrine  will  often  practically  limit  the  time  for  bringing  the  action 
of  ejectment  in  such  cases  [viz.,  where  the  plaintiff"  claims  as  grantee  in 
reversion  of  an  estate]  ;  and  circumstances  may  be  supposed,  as  of  a  lease 
for  seven  years,  commencing  on  the  death  of  A.,  or  of  a  promissory  note 
payable  two  months  after  A.'s  death,  and  many  other  cases  which  might  be 
put,  in  which  it  would  be  difficult  to  carry  into  eftect  certain  contracts,  or  to 
have  remedies  for  the  breach  of  them,  if  the  parties  interested,  instead  of 
making  inquries  respecting  the  person  on  whose  life  so  much  depended, 
chose  to  wait  for  the  legal  presumption.  Such  inconveniences  may  no  doubt 
arise,  but  they  do  not  warrant  us  in  laying  down  a  rule,  that  the  party  shall 
be  presumed  to  have  died  on  the  last  day  of  the  seven  years,  Avhich  would 
manifestly  be  contrary  to  the  fact  in  almost  all  instances." — 2  M.  &  W.  913, 
914. 

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220  PRESUMPTIONS  AS  TO  CONTINUANCE  OF  LIFE.         [pART  I. 

§  201,  Where  it  appeared  that  a  brig  had  sailed  from  Demerara  g  158 
for  England  in  December,  1828,  had  touched  at  Dominica  on  the 
24th  of  that  month,  and  had  never  afterwards  been  heard  of, 
Vice- Chancellor  Knight  Bruce,  after  a  lapse  of  seven  years,  pre- 
sumed that  the  vessel  and  her  crew  were  lost  before  the  2Dth  of 
January,  1829,  evidence  being  given  that  the  average  length  of  a 
voyage  from  Dominica  to  England  was  under  two  months,  and 
that  the  West  Indian  latitudes  were  subject  to  hurricanes,  which 
were  so  much  more  prevalent  between  the  first  of  August  and  the 
10th  of  January,  that  premiums  for  insurance  during  that  time 
were  double  what  they  were  at  other  periods  of  the  year.'  Sj, 
upon  an  issue  of  the  life  or  death  of  a  party,  the  jury  may  find 
the  fact  of  death  from  the  lapse  of  a  shorter  period  than  seven 
years,  if  other  circumstances  concur  ;  as,  if  the  party,  when  last 
heard  of,  was  aged,  or  infirm,  or  ill,^  or  had  since  been  exposed 
to  extraordinary  peril,  such  as  a  storm  and  probable  shipwreck.' 
But  the  presumption  of  the  common  law,  independent  of  the 
finding  of  a  jury,  does  not  attach  to  the  mere  lapse  of  time  short 
of  seven  years/ 

§  202.^  When  two  persons,  and  especially  when  two  relatives,  »  159 
have  x>eris]ied  in  the  same  calamity,  such  as  a  wreck,  a  battle,  or  a 
conflagration,  it  often  becomes  important,  with  a  view  of  deter- 
mining the  right  of  succession  to  estates,  to  ascertain  who  was 
the  survivor.  Direct  proof,  however,  can  seldom  be  procured  in 
these  cases,  and,  consequently,  in  the  Roman  law,  and  in  several 
other  codes,  recourse  is  had  to  artificial  presumptions,  whenever 
the  particular  circumstances  connected  with  the  deaths  are  wholly 


1  Sillick  V.  Booth,  1  Y.  &  C,  Ch.  R.  117.  See  Ommaney  v.  Stilwell,  23 
Beav.  328.' 

2  E.  V.  Harhorne,  2  A.  &  E.  544,  per  Ld.  Denman  ;  4  N.  &  M.  344,  S.  C.  ; 
Beasney's  Trust,  re,  38  L.  J.,  Ch.  159  ;  7  Law  Kep.,  Eq.  498,  S.  C. 

3  Watson  V.  King,  1  Stark.  R.  121  ;  4  Camp.  272,  S.  C.  ;  Patterson  v.  Black, 
cited  2  Park.  Ins.  919,  920.  In  the  case  of  a  missing  ship,  bound  from 
Manilla  to  London,  on  which  the  underwriters  had  voluntarily  paid  the 
amount  insured,  the  death  of  those  on  board  was  presumed  by  the  Pre- 
rogative Court,  after  the  absence  of  only  two  years,  and  administration  was 
granted  accordingly  ;  In  re  Hutton,  1  Curt.  595. 

*  See  further  on  this  subject,  Hubb.  Ev.  of  Sue.  1G7,  et  seq.,  758,  759. 

*  Gr.  Ev.  l  29,  in  part 

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CHAP,  v.]  PRESUMPTIONS  AS  TO  SURVIVORSHIP.  221 

unknown.  These  presumptions  are  based  on  the  probabilities  of 
survivorship  resulting  from  strength,  age,  and  sex.  In  the  case 
of  a  father  and  son  perishing  together  in  the  same  shipwreck  or 
battle,  the  Roman  law  presumes  that  the  son  died  first,  if  he  was 
under  the  age  of  puberty  ;  but  if  be  was  above  that  age,  that  he 
was  the  survivor  ;  upon  the  principle,  that  in  the  former  case,  the 
elder  is  generally  the  more  robust,  and  in  the  latter,  the  younger.' 
The  French  code  has  regard  to  the  ages  of  fifteen  and  sixty  ; 
presuming  that  of  those  under  the  former  age,  the  eldest  survived  ; 
and  that  of  those  above  the  latter  age,  the  youngest  survived.  If 
one  of  these  parties  were  under  the  age  of  fifteen,  and  the  other 
above  the  age  of  sixty,  the  former  is  presumed  to  have  survived. 
If  both  parties  were  between  those  ages,  but  of  different  sexes, 
the  male  is  presumed  to  have  survived,  unless  he  were  more  than 
a  year  younger  than  the  female:  but  if  they  were  of  the  same  sex, 
the  presumption  is  in  favour  of  the  survivorship  of  the  younger,  as 
opening  the  succession  in  the  order  of  nature."  The  same  rules 
were  in  force  in  the  territory  of  Orleans,  at  the  time  of  its  cession 
to  the  United  States,  and  have  since  been  incorporated  into  the 
Code  of  Louisiana.'^  They  have  also,  with  some  modifications,  been 
adopted  into  the  State  of  New  York.* 

§  203.  In  cases  of  this  nature  the  law  of  England  recognises^  no    ^  leo 


'  Dig.  lib.  34,  tit.  5  ;  De  rebus  dubiis,  lib.  9,  ^  1,  3 ;  Id.  i.  1(3,  22,  23  ; 
Menoch.  de  Praes.  lib.  1,  Qiisest.  x.  n.  8,  9.  This  rule,  however,  was  subject 
to  some  exceptions  for  the  benefit  of  mothers,  patrons,  and  beneficiaries. 

^  Code  Civil,  U  '720,  721,  722  ;  Duranton,  Cours  de  Droit  Franyais,  torn.  6, 
pp.  32,  42,  43,  48,  67,  69  ;  Rogron,  Code  Civil,  Expli.  411,  412  ;  Toullier,  Droit 
Civil  Frangais.  tom.  4,  pp.  70,  72,  73. 

»  Civ.  Code  of  Louis,  art.  930—933  ;  Dig.  of  Civ.  L.  of  Orleans,  art  60—63. 

*  N.  York  Civ.  Code,  §  1780,  tit.  3. 

^  R.  V.  Dr.  Hay,  1  W.  Bl.  640.  This  case,  better  known  as  General  Stan- 
wix's  case,  was  compromised  upon  the  recommendation  of  Ld.  Mansfield,  who 
said  he  knew  of  no  legal  principle  on  which  he  could  decide  it.  See  2  Phillim. 
R.  268,  n.  ;  Fearne's  Posth.  Works,  38  ;  Doe  v.  Neopean,  5  B.  &  Ad  91,  92  ; 
Underwood  v.  Wing,  19  Beav.  459,  per  Romilly,  M.  R.  ;  aflf.  on  appeal  by 
Ld.  Cran worth,  C,  assisted  by  Wightman,  J.,  and  Martin,  B.,  4  De  Gex,  M. 
&  G.  1 ;  Mason  v.  Mason,  1  Meriv.  308.  See  Durrant  v.  Friend,  5  De  Gex 
&  Sm.  343  ;  Barnett  v.  Tugwell,  31  Beav.  232.  For  the  cases  decided  in  the 
old  Eccles.  Courts,  see  Wright  r.  Netherwood,  2  Salk.  593,  n.  a.  by  Evans  ; 
more  fully   reported  under  the  name  of  Wright  v.  Sarmuda,   2   Phillim.  R. 

(3087) 


OQ9 


PRESUMPTIONS  AS  TO  SURVIVORSHIP.  [PAKT  I. 


presumption,  either  of  survivorship,  or  of  contemporaneous  death ;  * 
bat,  in  the  total  absence  of  all  evidence  respecting  the  particular 
circumstances  of  the  calamity,  the  matter  will  be  treated  as  one  in- 
capable of  being  determined."  On  one  occasion,  indeed,  Yice-Chan- 
cellor  Knight-Bruce  appears  to  have  expressed  an  opinion,  that 
a  presumption  of  priority  of  death  might  be  raised  from  the  com- 
parative age,  strength,  and  skill  of  the  parties  ;  and,  in  accordance 
with  this  view,  where  two  brothers  perished  by  shipwreck,  the  cir- 
cumstances being  wholly  unknown,  but  it  appeared  that  the  one  was 
twenty-eight  years  of  age,  and  the  master  of  the  ship,  while  the 
other  was  under  age,  and  acted  as  second  mate,  it  was  presumed 
that  the  elder,  as  the  stronger  and  more  experienced  sailor,  survived 
the  younger.^  This  case,  however,  cannot  be  relied  upon  as  an 
authority,  since  it  is  opposed  to  a  long  current  of  decisions.  It 
remains  only  to  observe,  that  if  any  circumstances  connected  with 
the  death  of  either  party  can  be  proved,  the  whole  question  of  sur- 
vivorship may  be  dealt  with  as  one  of  fact,  and  the  comparative 
strength,  or  skill,  or  energy,  of  the  two  sufferers  may  then  very  fairly 
be  taken  into  account. 


§  204.  A  rule   has  been    adopted    in  insurance  law,   that  if  a    g  j^l 
vessel  has  sailed,  and  no  tidings  of  her  have  been  received  within 
a   reasonable    time,    she  shall  be  presumed  to  have  foundered  at 


266—277,  n.  c.  ;  Taylor  v.  Diplock,  id.  261,  278,  280  ;  Selwyn's  case,  3  Hagg, 
Ec.  E.  748  ;  In  the  goods  of  IMurray,  1  Curt.  596.  In  the  brief  note  of  Colvin 
V.  Proc.  Gen.  1  Hagg.  Ec.  E.  92,  where  the  hu.sband,  wife,  and  infant  (if  any) 
perished  together,  the  court  seems  to  have  held,  that  the  prima  facie  presump- 
tion of  law  was  that  the  husband  survived;  but  the  question  was  not  ml^ch 
discussed  ;  and  in  Satterthwaite  r.  Powell,  1  Curt.  705,  where  a  husband  and 
wife  perished  in  the  same  wreck,  the  court  would  not  presume  that  he  survived, 
and  consequently  refused  to  grant  to  his  representative  tlie  administration  of 
property  vested  in  the  wife.  The  subject  of  presumed  survivorsliip  is  fully 
treated  in  4  Burge,  Com.  on  Col.  &  For.  L.,  11—29;  and  in  Hubb.  Ev.  of  Sue. 
186,  et  seq.,  and  759—764.     See  also  2  Kent,  Com.  435,  436,  4th  ed.,  n.  h. 

^  By  the  Mahometan  law  of  India,  when  relatives  thus  perish  together,  "it 
is  to  be  presumed  that  they  all  died  at  the  .same  moment ;  and  the  property 
of  each  shall  pass  to  his  living  heirs,  without  any  portion  of  it  vesting 
in  his  companions  in  misfortune."  See  Baillie's  Moohummudan  Law  of 
Inherit.  172. 

-  Wing  V.  Angrave,  8  H.  of  L.  Cas.  183 ;  30  L.  J.,  Ch.  65,  S.  C. 

3  Sillick  V.  Booth,  1  Y.  &  C,  Ch.  R.  117,  126. 

(3088) 


CHAP,  v.]    PRESUMPTIONS  ADOPTED  IN  INSURANCE  LAW.        223 

• 

€ea.*  By  "tidings"  are  meant,  not  mere  rumours,  but  some 
actual  intelligence  received  from  persons  capable  of  giving  an 
authentic  account;'  and,  it  seems,  that  in  an  action  on  a  policy 
from  an  English  to  a  foreign  port,  the  presumption  of  loss  will 
sufficiently  arise,  from  proof  that  the  ship  was  not  heard  of  in 
this  country  after  she  sailed,  without  calling  witnesses  from  the 
port  of  destination  to  show  that  she  never  arrived  there.^  Neither 
the  law  of  England,  nor  the  usage  of  merchants,  has  fixed  any 
definite  period  after  which  the  assured  may  demand  payment  for 
his  loss,  in  case  no  intelligence  is  received  respecting  the  vessel 
insured;  but  a  practice  has  prevailed  among  insurers  of  deeming 
a  vessel  lost,  provided  she  shall  not- have  been  heard  of  within 
six  months  after  her  departure  for  any  port  in  Europe,  or  within 
twelve  months  if  bound  for  a  greater  distance.* 


§  205.  Another   presumption    connected   with    the    law  of    in-    §  i62 
Burance  is  this,  that  if  a  ship,  shortly  after  sailing,  shall,  without 
visible  or   adequate  cause,  become  leaky,  or  otherwise    incapable 
of  performing  the  voyage  insured,  she  shall   be  deemed  to  have 


'  Green  r.  Brown,  2  Str.  1199;  Newby  v.  Reed,  cited  1  Park,  Ins.  148; 
Koster  v.  Reed,  6  B.  &  C.  19;  9  D.  &  R.  2,  S.  C.  But  in  order  to  recover  on 
a  policy,  there  must  be  some  evidence,  that  when  the  ship  left  the  port  of 
outfit,  she  was  bound  upon  the  voyage  insured,  Cohen  v.  Hinkley,  2  Camp.  51, 
per  Ld.  Ellenborough;  Coster  v.  Innes,  Ry.  &  M.  333,  per  Abbott,  C.  J. 

^  Koster  v.  Reed,  6  B.  &  C.  22,  per  Baj^ley,  J.  In  that  case  a  Avitness  stated 
that  a  few  days  after  the  vessel  sailed,  he  heard  that  she  had  foundered,  but 
that  the  crew  were  saved ;  Held  not  sufiicient  to  rebut  the  presumption  of 
loss  which  arose  from  the  ship  never  having  arrived  at  her  port  of  destination, 
and  that  the  plaintiif  was  neither  bound  to  call  any  of  the  crew,  nor  to  show 
that  he  was  unable  to  do  so. 

^  Twemlow  v.  Oswin,  2  Camp.  85,  per  Sir  J.  Mansfield,  C.  J. 

*  1  Park,  Ins.  149.  In  Spain  and  France,  the  time  after  which  insurance 
losses  may  be  demanded,  is  fixed  by  express  regulation.  By  the  ordinances 
of  the  former,  if  a  ship  insured  on  going  to.  or  coming  from,  the  Indies,  is 
not  heard  of  within  a  year  and  a  half  after  her  departure  from  the  port  of 
outfit,  she  is  deemed  lost,  2  Magens,  33;  by  those  of  the  latter,  if  the  assured 
receives  no  news  of  his  ship,  he  may,  at  the  expiration  of  a  year  for  common 
voyages,  reckoning  from  the  day  of  the  departure,  and  after  two  years  for 
those  of  a  greater  distance,  make  his  session  to  the  underwriters,  and  demand 
payment,  without  being  obliged  to  produce  any  certificate  of  the  loss,  Ordon- 
nance  de  la  Marine,  liv.  3,  t.  G,  des  Assur.  Art.  58;  1  Park,  Ins.  149. 

(3089) 


224  PRESUMPTIONS  ADOPTED  IN  MARITOIE  LAW.  [PAKT  I. 

been  unseaworthy  at  the  commencement  of  the  risk.'  This  pre- 
sumption, however,  is  not  really  a  proposition  of  law,  capable  of 
shifting  the  burthen  of  proof  fi'om  the  insurer  to  the  shipowner, 
but  it  is  simply  an  inference  of  fact  which  may  be  drawn  by  the 
intelligence  of  the  jiiry,"  and  which  at  no  time  is  of  so  binding  a 
nature,  as  to  induce  the  court  to  grant  a  third  trial,  when  two  special 
juries  have  already  concurred  in  finding  an  adverse  verdict.' 

§  206.  The  Admirality  Division  of  the  High  Court  recognises  §  ig2a 
certain  presumptions,  which  ought  to  be  borne  in  mind,  as  they 
have  the  effect  of  technically  shifting  the  burthen  of  proof.  Thus, 
in  cases  of  collision,  if  one  of  the  vessels  be  shown  to  have  been  at 
anchor,  the  fact  so  far  raises  a  presumption  in  her  favour,  as  to 
impose  on  the  other  vessel  the  necessity  of  making  out  her  defence.* 
So,  if  a  ship  be  proved  to  have  been  in  stays  at  the  time  of  the  col- 
lision, she  is  presumed  to  have  been  unable  to  avoid  it;  and  the 
burthen  of  proof  rests  on  the  opposite  side  to  establish,  either  that 
the  vessel  was  impi-operly  put  in  stays,— -whatever  that  means, — or 
that  the  damage  was  occasioned  by  the  stress  of  weather,  or  by  other 
unavoidable  accident.^  Again,  in  the  case  of  a  collision  between  two 
ships,  the  "person  in  charge,"— or,  in  other  words,  the  master, — - 
of  each  ship  is  bound  to  render  assistance  to  the  other  vessel,  and 
to  stay  by  her  for  that  purpose;  and  if  he  fail  to  do  so,  the  collision 
shall,  in  the  absence  of  proof  to  the  contrary,  be  deemed  to  have 
been  caused  by  his  wrongful  act.*^  So,  the  infringement  of  any 
regulation  for  preventing  collisions  at  sea,^  which  is  made  under 
the  Merchant"  Shipping  Act  Amendment  Act,*  1862,  raises  a  pre- 
sumption of  blame  as   against  the  infringer,  unless  he  can   show 

^  Watson  V.  Clark,  1  Dow,  344;  I\Iunro  v.  Vandam,  1  Park,  Ins.  4(i9,  per 
Ld.  Kenyon;  Parker  v.  Potts,  3  Dow,  23. 

2  Pickup  V.  Thames  Ins.  Co.,  L.  R.,  3  Q.  B.  D.  594,  per  Ct.  of  App. ;  47 
L.  J.,  Q.  B.  749,  S.  C.     This  case  deserves  an  attentive  perusal. 

•''  Foster  v.  Steele,  3  Bing.  N.  C.  892;  5  Scott,  25  S.  C,  per  Tindal,  C.  J. 
and  Park,  J.;  Vaughan  and  Coltman,  Js.,  diss. 

*  The  Bothnia,  Lush.  Adm.  R.  52. 

^  The  Sea  Nymph,  Lush.  Adm.  R.  23. 

«  The  Queen,  2  Law  Rep.,  Adm.  &  Ecc.  354;  36  &  37  V.,  c.  85,  ?  16. 

'  Made  under  Order  in  Council,  of  14  Aug.  1879,  and  which  came  into 
operation  on  1st  Sept.  1880;  see  L.  R.,  4  P.  D.  241;  and  49  L.  J.,  Ord  and 
Rules,  p.  1.  This  Order  is  now  annulled,  and  New  Regulations  substituted, 
by  an  Order  in  Council,  gazetted  on  19th  Aug.,  1884. 

«25&26  A^,  c.  63. 

(3090) 


CHAP,  v.]  PRESUMPTIONS  ADOPTED  IN  MARITIME  LAW.  225 

either  tliat  circumstances  "  made  a  departure  from  the  regulation 
necessary,"  '  or  that  the  infringement  charged  could  not  by  possi- 
bility have  contributed  to  the  collision."  Again,  if  a  salvor's  vessel 
has  been  injured  or  lost  while  engaged  in  the  salvage  service,  the 
Admiralty  Division  presumes,  prima  facie,  that  such  injury  or 
loss  was  caused  by  the  necessities  of  the  service,  and  not  by  the 
salvor's  default.^ 

§  207.  By  the  principles,  too,  of  our  maritime  law,  every  §  ig3 
reasonable  presumption  must  be  made  in  favour  of  the  rights  of 
property  in  the  owners,  whenever  any  question  of  derelict  is 
mooted  between  them  and  the  salvors.  Thus,  the  33rd  article  of 
the  laws  of  Oleron  enacts,  that  "  if  from  any  ship  or  other  vessel 
have  been  cast  overboard  several  goods  or  merchandises  which 
are  in  chests  well  locked  and  made  fast ;  or  books  so  well  secured 
and  so  well  conditioned  that  they  may  not  be  damnified  by  salt 
water;  in  such  cases  it  is  to  be  presumed  that  they  who  did  cast 
such  goods  overboard  do  still  retain  an  intention,  hope,  and  desire 
of  recovering  the  same  :  for  which  reason,  such  as  shall  happen 
to  find  such  things,  are  obliged  to  make  restitution  thereof  to  him 
who  shall  make  a  due  inquiry  after  them."  On  the  principle  of 
this  enactment, — which  has  been  the  law  for  the  last  seven  hundred 
and  fifty  years,  and  which  is  still  in  full  force,* — it  has  repeatedly 
been  held,  that  where  salvors  make  a  claim,  as  in  a  case  of  dere- 
liction, it  will  not  sufiice  for  them  merely  to  prove  that  they  found 
the  vessel  at  sea  apparently  abandoned,  but  they  must  go  further 
and  prove  that  the  master  and  crew,  when  they  left  the  vessel,  did 
so  without  any  hope,  expectation,  or  intention  of  being  able  to  return, 
or,  in  the  technical  language  of  the  law,  sine  spe  recuperandi.^ 


'  36  &  37  v.,  c.  85,  ^  17.  These  words  mean  "  absolutely  necessary,"  leav- 
ing no  margin  for  disci'etion,  Stoomvaart,  &c.  v.  Pen.  &  Orien.  St.  Nav.  Co. 
L.  R.,  5  App.  Cas.  876,  per  Dom.  Pr.  But  §  17  does  not  apply  to  an  infringe- 
ment of  the  Thames  Rules;  The  Harton,  L.  R.,  9  P.  D.  44. 

2  The  Fanny  Carvill,  44  L.  J.,  Adm.  34  per  P.  C;  Law  Rep. ,'^4  Adm.  &  Ecc. 
417,  S.  C.  nom.  The  Magnet;  The  Englishman,  L.  R.  3  P.  D.  18;  47  L.  J.,  P. 
D.  &  A.  9,  S.  C. ;  The  Tirzah,  48  L.  J.,  P.  D.  &  A.  15;  P.  R.,  4  P.  D.  33,  S.  C; 
Emery  v.  Cichero,  re  The  Arklow,  53  L.  J.,  P.  C.  9. 

=*  The  Thomas  Blyth,  Lush.  Adm.  R.  16. 

*  In  re  Cosmopolitan,  6  Ecc.  &  Mar.  Cas.,  Supp.  xxviii,  per  Dr.  Stock. 

*  Id.  x\ai,  and  cases  there  cited.     The  judgment  of  the  court  in  this  case  is 

15   LAW  OF  EVID.— V.  I.  (3091) 


226  PRESUMPTIONS  ADOPTED  IN  MARITIME  LAW.  [pART  I. 

§  208.  It  here  deserves  notice  that  a  ship-owner, — except  so  far  g  164 
as  his  liability  is  limited  by  the  Merchant  Shipping  Acts,  1854 
and  1SG2,' — is  primfi  facie  presumed  to  be  responsible  for  any 
damao^e  occasioned  by  negligence  in  the  navigation  of  his  vessel.  In 
order,  therefore,  to  bring  himself  within  the  exemption  from  liability 
conferred  npon  him  by  the  first  named  Act  Avhere  pilotage  is  com- 
pulsory," it  is  not  svifficient  merely  to  show  that  he  had  a  pilot  on 
board  at  the  time  of  the  accident,  and  that  the  presence  of  such 
pilot  was  compulsory,^  but  the  burthen  of  proof  lies  upon  him  to 
establish  the  further  fact,  that  the  damage  was  occasioned  exclu- 
sively by  the  pilot's  fault.*     In  using  this  language  it  is  not  meant 


very  elaborate,  and  well  deserves  an  attentive  pernsal.  The  Admiralty  Division 
Tdll  never  decree  more  than  a  moiety  of  the  value  of  the  article  saved  for  mere 
salvage,  independent  of  dereliction.  Gore  v.  Bethel,  12  Moo.  P.  C.  K.  189;  The 
Inca,  Swab.  Adm.  R.  370. 

1  17  &  18  v.,  c.  104,  U  503—516,  and  388;  25  &  26  V.,  c.  63,  §  54;  see  The 
Eajah,  3  Law  Rep.,  Adm.  &  Ecc.  539. 

'^  §  388  enacts,  that  "No  owner  or  master  of  any  ship  shall  be  answerable 
to  any  person  whatever  for  any  loss  or  damage  occasioned  by  the  fault  or  in- 
capacity of  any  qualified  pilot  acting  in  charge  of  such  ship,  within  any  district 
where  the  employment  of  such  pilot  is  compulsory  by  law."  See  Conserv.  of 
Riv.  Thames  v.  Hall,  37  L.  J.,  C.  P.  163;  3  Law  Rep.,  C.  P.  415,  S.  C;  Prowse 
V.  The  European  &  Amer.  St.  Shipping  Co.,  13  Moo.  P.  C.  R.  484:  Lu.sh.  Adm. 
R.  103,  S.  C.  nom.  The  Peerless;  The  Clan  Gordon,  L.  R.,  7  P.  D.  190.  This 
statutable  law  is  applicable  to  a  case,  where  the  collision  has  occurred  within 
the  limits  of  a  foreign  port;  The  Halley,  2  Law  Rep.,  P.  C.  193;  overruling  S. 
C,  as  decided  per  Sir  R.  Phillimore;  2  Law  Rep.,  Adm.  &  Ecc.  3;  37  L.  J., 
Adm.  1,  S.  C.  As  to  the  meaning  of  the  word  "compulsory,"  see  Gen.  St. 
Nav.  Co.  r.  Brit.  &  Col.  St.  Nav.  Co.,  3  Law  Rep.,  Ex.  330;  37  L.  J.,  Ex.  194, 
S.  C. ;  38  L.  J.,  Ex.  97,  S.  C.  in  Ex.  Ch. ;  and  4  Law  Rep.,  Ex.  238.  As  to  the 
meaning  of  the  term  "acting  in  charge,"  see  The  Princeton,  47  L.  J.,  Adm. 
33;  L.  R.  3  P.  D.  90,  S.  C;  The  Guy  Mannering,  L.  R.,  7  P.  D.  132,  per  Ct.  of 
App. ;  51  L.  .J.,  P.  D.  &  A.  57,  S.  C.  A  pilot  being  on  board  a  towed  vessel 
will  not  exempt  the  tug  from  liability;  The  Mary,  48  L.  J.,  P.  D.  &  A.  66;  The 
Sinquasi,  L.  R.,  5  P.  D.  241;  50  L.  J.,  P.  D.  &  A.  5,  S.  C.  ISee  also,  Spaight 
V.  Tedcastle,  L.  R.,  6  App.  Cas.  217,  per  Dom.  Proc.  in  App.  from  Ireland. 

»  The  Earl  of  Auckland,  30  L.  J.,  Pr.  Mat.  &  Adm.  121 ;  Lush.  Adm.  R.  164, 
S.  C;  S.  C.  nom.  Malcomson  v.  Baldock,  15  Moo.  P.  C.  R.  304;  The  Hanna,  36 
L.  J..  Adm.  1;  The  Annapolis,  Lu.sh.  Adm.  R.  295;  The  Lion,  Owners  r.  The 
York-Town,  Owners,  38  L.  J.,  Adm.  51 ;  2  Law  Rep.,  P.  C.  525,  S.  C. 

*  Hammond  v.  Rogers,  7  Moo.  P.  C.  R.  160;  Pollock  v.  M'Alpin,  id.  427; 
Bates  ?'.  D.m  Pablo  S :)ra,  10  Moo.  P.  C.  R.  467;  The  Carrier  Do\c,  1  B.  & 
Lush.    Adm.   R.  113;  The  lona,  1  Law  Rep.,  P.   C.  426;  4  Moo.  P.   C,  N.  S. 

(3092)- 


CHAP.  V.J  PRESUMPTIONS  RESPECTING  DOMICIL.  227 

that  the  ship-o^vner  will  be  obliged  to  exonerate  himself  by  indefi- 
nite negation,  but  it  will  suffice  for  him  in  the  first  instance  to  show 
that  the  pilot's  fault  occasioned  the  damage,  leaving  his  opponent, 
if  he  can,  to  establish  as  against  the  ship-owner  a  case  of  contribu- 
tory negligence.'  The  legal  owner  of  a  ship  is  also  prima  facie 
liable  to  pay  for  all  such  repairs  and  stores  ordered  by  the  master,^ 
as  are  necessary  for  the  equipment  and  navigation  of  the  ship  in  the 
voyage  of  trade  in  which  she  is  empoyed;  for  the  master,  in  the 
absence  of  all  evidence  to  the  contrary,^  is  presumed  to  be  the  agent 
of  the  owner  to  give  all  needful  orders,  and  he  consequently  has 
authority  to  pledge  the  owner's  credit  for  goods  supplied  or  work 
done  in  pursuance  of  such  orders. "^ 

§  209.  In  cases  respecting  the  national  character  of  a  man,  who  ^  155 
either  has  no  fixed  place  of  residence,  or  who  has  two  homes,  and 
the  scale  is  almost  evenly  balanced  between  them,  the  legal  pre- 
sumption is  in  favour  of  what  is  called  the  forum  originis,  or  domicU 
of  origin ;  by  which  is  meant,  not  the  place  where  he  may  chance 
to  have  been  born,  but  the  home  of  his  parents.^     When  a  man's 

336,  S.  C;  The  Minna,  2  Law  Rep.,  Adm.  &  Ecc.  97;  The  Valesquez,  1  Law 
Rep.,  P.  C.  494;  4  Moo.  P.  C,  N.  S.  426;  36  L.  J.,  Adm.  19  S.  C;  The  Vic- 
toria, 1  Ir.,  Eq.  336;  The  General  De  Caen,  Swab.  Adm.  R.  9;  The  Mobile, 
id.  69  &  127;  The  Admiral  Boxer,  id.  193;  The  Schwalbe,  Lush.  Adm.  R. 
239;  14  ]\Ioo.  P.  C.  R.  241,  S.  C.  nom.  North  German  Lloyd  St.  Ship  Co.  v. 
Elder;  The  Netherlands  St.  Boat  Co.  r.  Styles,  9  Moo.  P.  C.  R.  286;  The 
Protector,  1  Rob.  Adm.  4o:  The  Diana,  id.  181;  4  Moo.  P.  C.  R.  11,  S.  C; 
Rodriques  v.  Melhuish,  10  Ex.  R.  110;  Wood  v.  Smith,  Re  The  City  of  Cam- 
bridge, 43  L.  J.,  Adm.  11;  5  Law  Rep.,  P.  C.  451,  S.  C;  Clyde  Navig.  Co.  v. 
Barclay,  L.  R.,  1  App.  Cas.  790;  The  Meteor,  I.  R.,  9  Eq.  567. 

'  Clyde  Navig.  Co.  v.  Barclay,  L.  R.,  1  App.  Cas.  790;  The  Daioz,  47  L.  J., 
P.  D.  &  A.  1;  The  Marathon,  48  L.  .!.,  P.  D.  &  A.  17. 

^  As  to  the  authority  of  a  ship's  husband  to  bind  the  owners,  see  Thomas  v. 
Lewis,  L.  R.,  4  Ex.  E.  18. 

•'  Mitcheson  v.  Oliver,  5  E.  &  B.  419;  Hibbs  v.  Ross,  1  Law  Rep.,  Q.  B.  534; 
35  L.  J.,  Q.  B.  193;  7  B.  &  S.  655,  S.  C. ;  Gunn  v.  Roberts,  9  Law  Rep.,  C.  P. 
331;  43  L.  J.,  C.  P.  233,  S.  C. 

^  Frost  V.  Oliver,  2  E.  &  B.  301;  Beldon  v.  Campbell,  6  Ex.  R.  880;  The 
Great  Eastern,  2  Law  Rep.,  Adm.  &  Ecc.  88;  Edwards  v.  Havell,  15  Cam.  B. 
107.  See  Wallace  v.  Fielden,  7  Moo.  P.  C.  R.  398;  Tronson  v.  Dent,  8  Moo.  P. 
C.  R.  419;  Myers  v.  Willis,  17  Com.  B.  77;  18  Com.  B.  886,  S.  C;  Brodie  u. 
Howard,  17  Com.  B.  109;  Hackwood  v.  Lyall,  id.  124;  Mackenzie  v.  Pooley, 
11  Ex.  R.  638;  Whitwell  v.  Perrin,  4  Com.  B.,  N.  S.  412.  See  Atlantic  Mnt. 
Ins.  Co.  r.  Huth,  L.  R.,  16  Ch.  D.  474. 

^  Munro  v.  Munro,  7  CI.  &  Fin.  842;  Bell  v.  Kennedy,  1  Law  Rep.,  H.  L. 

(3093) 


228  PRESUMPTIONS  RESPECTINO  DOMICIL.  [pART  I. 

domicil  of  origin  is  not  known,  or  when  his  intention  to  abandon  it 
can  be  proved,  the  law  presumes,  prima  facie,  that  the  place  of  his 
actual  residence  is  the  place  of  his  acquired  domicil: '  but  this  pre- 
sumption may  be  easily  rebutted  by  showing  that  he  has  merely 
come  to  live  in  the  country  where  he  is  staying,  either  for  a  limited 
period,  or  for  a  special  purpose,  or  that  in  point  of  fact  he  has  no 
animus  manendi,  no  settled  intention  of  making  that  country  his 
place  of  permanent  abode."  When  a  married  man  has  two  houses 
situate  in  different  countries,  in  both  of  which  he  is  in  the  habit  of 
residing,  his  home  or  domicil  will  generally  be  presumed  to  be  that 
house,  in  which  his  wife  and  his  establishment  of  servants  usually 
remain  when  he  is  at  the  other.^  In  conseqiience  of  the  legal  pre- 
sumption in  favour  of  the  domicil  of  origin,*  slighter  evidence  is 
required  to  warrant  the  conclusion  that  a  man  has  intended  to 
abandon  an  acquired  domicil,  and  to  resume  his  domicil  of  origin, 
than  is  necessary  to  justify  the  conclusion  that  he  has  determined 
to  abandon  this  last,  and  to  acquire  a  new  domicil.^ 

§  210.  The  presumption,  too,  against  the  acquisition  of  a  new    ?  165 
domicil  will  be  stronger  in  the  case  of  a  person,  who  is  alleged 
to  have  gained  it  in  a  foreign  land,  than  it  would  be,  were  the 
domicil  in  a  country  where  the  party  would  not  be  a  foreigner." 

Sc.  307;  Somerville  v.   Somerville,   5  Ves.  750;  Forbes  v.  Forbes,  1  Kay,  364 
Crookenden  v.   Fuller,  29  L.   J.,   Pr.   &  Mat.  1;  1  Swab.  &  Trist.  441,  S.  C. 
Whicker  v.  Hume,  28  L.  J.,  Ch.  396;  in  Dom.  Proe."  7  H.  of  L.  Cas.  124,  S.  C. 
Lord   V.    Colvin,   28  L.   J.,  Ch.   361,   per  Kindersley,   V.-C. ;   Hodgson  i'.   De 
Beauchesne,  12  Moo.  P.  C.  E.  285. 

'  Bempde  v.  Johnstone,  3  Ves.  198,  per  Ld.  Thurlow;  Bruce  v.  Bruce, 
2  B.  &  P.  230;  n.  per  id.;  6  Br.  P.  C.  566,  S.  C;  The  Diana.  5  Rob. 
Adm.  60;  The  Ocean,  id.  90;  The  President,  id.  277;  Guier  v.  O'Daniel,  1 
Binn.  349,  n. 

2  Bruce  i-.  Bruce,  2  B.  &  P.  230,  n. ;  6  Br.  P.  C.  560,  S.  C. ;  Bell  v.  Kennedy, 
1  Law  Rep.,  H.  L.  Sc.  307;  Lord  v.  Colvin,  38  L.  J.,  Ch.  361,  366;  Jopp  v. 
Wood,  4  De  Gex,  J.  &  S.  016;  King  v.  Foxwell,  L.  R.,  3  Ch.  D.  518;  45  L.  J. 
Ch.  693,  S.  C;  Gillis  v.  Gillis,  I.  R.,  8  Eq.  597;  The  Harmony,  2  Rob.  Adm. 
322;  Guier  v.  O'Daniel,  1  Binn.  349,  n. 

«  Forbes  v.  Forbes,  1  Kay,  364,  per  Wood,  V.-C;  Piatt  v.  Att.-Gen.  of  New 
S.  Wales,  L.  R.,  3  App.  Cas.  336,  343,  in  J.  C;  47  L.  J.,  P.  C.  26,  S.  C. 

*  See  Udny  v.  Udny,  1  Law  Rep.,  H.  L.  Sc.  441;  and  King  r.  Foxwell,  L. 
E.,  3  Ch.  D.  518;  45  L.  J.,  Ch.  693,  S.  C. 

s  Lord  V.  Colvin,  28  L.  J.,  Ch.  373,  per  Kindersley,  V.-C;  Douglas  v. 
Douglas,  12  Law  Rep.,  Eq.  642,  per  Wickens,  V.-C;  41  L.  J.,  Ch.  74,  S.  C 

6  Id.;  Whicker  v.   Hume,  id.   399,   400,  per  Ld.  Cramvorth;  7  H.  of  L.  Cas. 

(3094) 


CHAP,  v.]  DOMICIL — COPYHOLDS — PEERAGES.  229 

For  instance,  the  court  would  more  readily  decide  that  a  Scotchman 
had  acquired  an  English,  or  an  Anglo  Indian,  domicilthan  a  French 
one  ;  for  a  man's  acquisition  of  a  domicil  in  a  foreign  country  is 
obviously  a  most  serious  matter,  since  it  not  only  renders  the 
validity  of  his  testamentary  acts,  and  the  disposition  of  his  personal 
property,  liable  to  be  governed  by  foreign  laws,  but  it  is  calculated 
to  involve  him  in  a  conflict  of  national  duties,  and  to  subject  him  to 
the  embarrassments  of  a  divided  allegience.^  The  law  presumes 
that  the  domicil  of  a  wife  is  the  domicil  of  her  husband  ;  and  this 
presumption  is,  as  a  general  rule,  conclusive."  An  exception, 
however,  might  possibly  be  recognized  in  the  case  of  a  judicial  sepa- 
ration pronounced  by  competent  authority,^  or  where  the  husband 
had  abjured  the  realm,  deserted  his  wife,  and  established  himself 
permanently  in  a  foreign  country,  or  had  committed  felony,  and 
been  transported.* 

§  211.  With  respect  to  copyhold  property,  the  law  presumes,  in    §  1Q6 
the  absence  of  proof  of  any  specific  custom  in  the  jpianor,  first,  that 
estate  tail  cannot  be  created,  and  next,  that  if  they  can,  they  are 
liable  to  be  barred  either  by  a  common  surrender,  or  by  a  surrender 
to  the  use  of  a  will.^ 

§  212.   Where  the  limitation  of  a  peerage  cannot  be  discovered,    §  167 
the  law  presumes  that  it  descends,  not  to  the  heirs  general,  but  to 
the  heirs  male  of  the  body  of  the  original  grantee,® 

§  213.'  A  spirit  of  comity  is  presumed  to  exist  among  nations  ;    a  jgg 
and,  consequently,  it  has  become  a  maxim  of  international  law  that 


124,  S.  C;  Hodgson  v.  De  Beauchesne,  12  Moo.  P.  C.  E.  285,  317;  Crookenden 
V.  Fuller,  29  L.  J.,   Pr.  &  Mat.  1,  8;  Swab.  &  Trist.  441,  S.  C.  ^  Id. 

"^  Dolphia  V.  Robins,  7  H.  of  L.  Cas.  390 ;  3  Macq.  So.  Cas.  H.  of  L.  563 
S.  C. 

*  7  H.  of  L.  Cas.  416,  per  Ld.  Cranworth  ;  420,  per  Ld.  Kingsdown. 

*  Id.  418,  419,  per  Ld.  Cranworth 

*  Gould  V.  White,  1  Kay,  683  ;  Radford  v.  Wilson,  3  Atk.  815  ;  Moore  v. 
Moore,  2  Ves.  Sen.  596,  603. 

®  Glencairn  Peer,  1  ]\Iacq.,  Sc.  Cas.  H.  of  L.  444,  recognised  and  confirmed 
in  Montrose  Peer.  id.  401  ;  Herries'  Peer.  3  id.  585,  588,  600,  603  ;  2  Law 
Rep.,  H.  L.  Sc.  258,  S.  C;  Breadalbane  Peer.  2  Law  Rep.,  H.  L.  Sc.  269. 

'  Gr.  Ev.  ?i  43,  in  imrt. 

(3095) 


230  NATIONAL   COMITY — PRESUMPTIONS   OF  FACT.  [PAKT  I. 

•when  the  solution  of  any  legal  question  depends  upon  the  law  of  a 
foreign  state, — as  for  example,  when  a  contract  made  in  one 
country  is  sought  to  be  enforced  in  another, — courts  of  justice  will, 
in  the  silence  of  any  positive  rule  affirming  or  denying  or  restrain- 
ing the  operation  of  such  foreign  laws,  presume  the  adoption  of 
them  by  their  own  government,  unless  they  are  repugnant  to  its 
policy,  or  prejudicial  to  its  interest.' 

§  214.^  Pkesumptions  of  fact,  usually  treated  as  composing  the  ^  1(>!' 
second  general  head  of  presumptive  evidence,  can  hardly  be  said  with 
propriety  to  belong  to  this  branch  of  the  law.  They  are  in  truth 
but  mere  arguments,  of  which  the  major  premiss  is  not  a  rule  of 
law;  they  belong  equally  to  any  and  every  subject-matter;  and  are 
to  be  judged  by  the  common  and  received  tests  of  the  truth  of  pro- 
positions, and  the  validity  of  arguments.  They  depend  upon  their 
own  natural  efficacy  in  generating  belief,  as  derived  from  those  con- 
nexions, which  are  shown  by  experience,  irrespective  of  any  legal 
relations.  They  differ  from  presumptions  of  law  in  this  essential 
respect,  that  while  those  are  reduced  to  fixed  rules,  and  constitute 
a  branch  of  the  system  of  jurisprudence,  these  merely  natural  pre- 
sumptions are  derived  wholly  and  directly  from  the  circumstances 
of  the  particular  case,  by  means  of  the  common  experience  of  man- 
kind, without  the  aid  or  control  of  any  rules  of  law.  Such,  for 
example,  is  the  inference  of  guilt,  drawn  from  the  discovery  of  a 
broken  knife  in  the  pockft  of  the  prisoner,  the  other  part  of  the 
blade  being  found  sticking  in  the  window  of  a  house,  which,  by 
means  of  such  an  instrument,  had  been  burglariously  entered.' 

§  215.     These  presumptions  remain  the  same  under  whatever  law    |  no 

1  Bk.  of  Augusta  v.  Earle,  13  Pet.  519,  589  ;  Story,  Confl.  U  36—38  ; 
Huber,  de  Confl.  Leg.,  lib.  1,  tit.  2,  |  2,  p.  538. 

^  Gr.  Ev.  I  44,  almost  verbatim,  except  the  note. 

^  See  Henry  VI.,  Pt.  ii.,  Act  iii.,  Sc.  2.  where  Warwick,  after  contemplating 
"  Duke  Humphrey's  timeless  death,"  is  made  by  our  gieat  poet  of  nature  to 
comment  thus  : — 

"Who  finds  the  heifer  dead,  and  bleeding  fresh, 
And  sees  fast  bj'  a  butcher  ^\'ith  an  axe, 
But  Avill  suspect  'twas  he  that  made  the  slaughter?" 

See,  also,  Smollett's  "  Adventures  of  Roderick  Random,"  Ch.  xx. 

(3096) 


CHAP,  v.]  PRESUMPTIONS  OF  FACT.  231 

the  legal  effect  of  the  facts,  when  found,  is  to  be  decided.'  They 
embrace  all  the  relations  between  the  fact  requiring  proof  and  the 
fact  or  facts  actually  proved,  whether  such  relations  be  direct  or 
indirect,  and  whether  they  be  physical  or  moral.  A  single  circum- 
stance may  raise  the  inference,  as  well  as  a  long  chain  of  circum- 
stances. For  instance,  the  decision  of  King  Solomon  as  to  which 
of  the  two  harlots  was  the  mother  of  the  living  child,  rested  on  the 
general  presumption"  in  favour  of  maternal  affection,  and  on  the 
sole  fact  that  the  "  bowels"  of  the  real  mother  "yearned  upon  her 
son,"  and  she  would  in  no  wise  consent  to  his  being  slain. ^  So, — 
to  pass  from  history  to  fiction, — the  famous  judgment  of  Saucho 
Panza  acquitting  the  herdsman  charged  with  rape,*  was  founded  on 
the  ascertained  fact  that  the  prosecutrix  successfully  resisted  the 
attempt  to  take  her  purse,  which  the  accused  made  by  order  of  the 
court.  "Sister  of  mine,"  said  honest  Sancho,  to  the  forceful  but 
not  forced  damsel,  "had  you  shown  the  same,  or  but  half  as  much 
courage  and  resolution  in  defending  your  chastity,  as  you  have 
shown  in  defending  your  money,  the  strength  of  Hercules  could  not 
have  violated  you." 

§  216.^  Although  it  is  the  exclusive  province  of  the  jury  to  fix    a  j-.j 
the  due  weight   which  ought  to  be  given  to  presumptions  of  fact, 
juries  are  usually  aided  in  their  labours  by  the  advice  and  instruc- 
tion of  the  judge,  more   or  less  strongly  urged,  at  his  discretion. 


1  See  3  St.  Ev.  932 ;  6  Law  Mag.  370.  This  subject  has  been  successfully 
illustrated  in  Wills,  Cir.  Ev.  passim. 

^  It  may  deserve  notice  that,  apart  from  this  presumption,  the  sacred  naiTa- 
tive  contains  not  one  word  to  show  that,  after  all,  the  judgment  was  right, 
that  is,  that  it  was  really  in  accordance  with  the  fact.  The  proverbial  wisdom 
of  the  decision  has,  all  along,  been  assumed  rather  than  proved. 

*  1  Kings,  ch.  3,  vv.  16 — 28.  Suetonius,  in  his  life  of  the  Emperor 
Claudian,  ch.  15,  states  that  the  monarch  discovered  a  woman  to  be  the  real 
mother  of  a  young  man,  whom  she  refused  to  acknowledge,  by  commanding 
her  to  marry  him  ;  for  rather  than  commit  incest  she  confessed  the  truth. 
Diodorus  Siculus  also  speaks  of  a  King  of  Thrace,  who  discovered  which  of 
three  claimants  was  the  son  of  a  deceased  king  of  the  Cimmerians,  by  ordering 
each  of  them  to  shoot  an  arrow  into  the  dead  body.  Two  obeyed  without 
hesitation,  but  the  other  refused.  See  Bagster's  Comprehensive  Bible,  note  B. 
to  V.  25  of  ch.  3  of  1  Kings.  *  Don  Quixote,  part  2,  book  3,  ch.  13. 

*  Gr.  Ev.  I  45,  in  part. 

(3097) 


232        TESTIMONY  OF  ACCOMPLICES — VERBAL  ADMISSIONS.      [PART  I. 

Indeed,  some  few  general  propositions  in  regard  to  matters  of  fact, 
and  the  weight  of  testimony,  are  now  universally  taken  for  granted 
in  the  administration  of  justice,  and  are  sanctioned  by  the  usage 
of  the  bench.'  Such  for  instance,  is  the  caution  given  to  juries,  to 
regard  with  distrust  the  testimony  of  aD  accomplice,  unless  it  be 
materially  confirmed  by  other  evidence.  There  is  no  ■  rigid  pre- 
sumption of  the  common  law  against  such  testimony  ;  yet  experi- 
ence has  shown  that  it  is  little  worthy  of  credit  :  and  on  this 
experience  the  usage  is  founded.^  A  similar  caution  should  prevail 
in  regard  to  mere  verbal  admissions  of  a  party,  this  kind  of  evidence 
being  subject  to  much  imperfection  and  mistake.^  So,  if  a  witness 
be  detected  in  telling  a  falsehood  in  one  part  of  his  testimony,  the 
jury  will  be  advised  to  place  little  reliance  on  the  remainder  of  his 
narrative. 


1  See  New  York  Civ.  Code,  I  1852. 

^  See  further  as  to  the  corroboration  of  acccomplices,  post,  §§  967 — 971. 

2  5  C.  &  P.  512,  n.,  per  Parke,  J.;  R.   v.  Simons,  6  C.  &  P.  541,   per  Alder- 
son,  B. ;  Williams  v.  Williams,  1  Hagg.  Cons.  304.     See  post,  II  861,  862. 


(3098) 


ALLEGATIONS  AND  EVIDENCE  MUST  CORRESPOND.  233 


PART  II. 

KULES  GOVERNING  THE  PRODUCTION  OF  TESTIMONY. 


CHAPTEE  I. 

CORRESPONDENCE  OF  EVIDENCE  WITH  ALLEGATIONS  ;  SUBSTANCE 
OF  ISSUE  ;  VARIANCE  ;  AND  AMENDMENT. 

§  217.'  The  production  of  evidence  on  the  trial  of  an  action  is  x  170 
governed  by  certain  principles,  which  may  be  treated  under  four 
general  rules.  First,  the  evidence  must  correspond  with  the 
allegations,  but  the  substance  only  of  the  issues  need  be  proved  ; 
secondly,  the  evidence  must  be  confined  to  the  points  in  issue  ; 
thirdly,  the  burthen  of  proving  a  proposition  at  issue  lies  on  the 
party  holding  the  substantial  affirmative  ;  and  fourthly,  the  best 
evidence,  of  which  the  case  in  its  nature  is  susceptible,  must 
always  be  produced.  These  rules  will  now  be  considered  in  their 
order. 

§  218.^  The  pleadings  are  composed  of  the  written  allegations  ^  173 
of  the  parties,  terminating  in  propositions  distinctly  affirmed  on  one 
side,  and  denied  on  the  other,  called  the  issues.  If  these  are  pro- 
positions of  fact,  the  first  rule,  which  it  is  important  to  remember, 
is,  that  the  evidence  must  correspond  ivith  the  allegations,  hut  that 
it  is  sufficient  if  the  substance  of  the  issues  be  j^roved.  As  one 
of  the  main  objects  of  pleading  is  to  apprise  the  parties  of  the 
specific  nature  of  the  questions  to  be  tried,  and  as  this  object  would 
be  defeated,  if  either  party  were  at  liberty  to  prove  facts  essentially 
different  from  those  which  he  has  stated  on  the  record,  as  consti- 
tuting his  claim  or  charge  on  the  one  hand,  or  his  defence  on  the 
other,  the  necessity  of  establishing  such  a  general  rule  as  the 
present  becomes  apparent,  and  the  only  remaining  question  concerns 

^  Gr.  Ev.  §  50,  slightly.  ^  Qj.   y.v.  §  51,  in  part,  as  to  first  six  lines. 

(3099) 


234  ABUSES  OF  OLD  LAW  OF  VARIANCE.  [PART  II. 

its  limitation  and  extent.^  Great  strictness  was  formerly  required 
in  the  application  of  this  rule  ;  almost  every  disagreement  between 
the  allegation  and  the  proof,  except  in  matters  clfearly  impertinent, 
being  held  to  constitute  what  was  called  a  variance,  the  conse- 
quences of  which  were  as  fatal  to  the  jjarty  on  whom  the  proof  lay, 
as  a  total  failure  of  evidence. 


§  219.  Thus,  in  an  action  for  the  breach  of  warranty  of  a  horse,  I  173 
where  the  declaration  stated  a  general  warranty,  and  the  proof  was 
that  the  defendant  had  warranted  the  horse  sound  everywhere 
except  a  kick  on  the  leg,  the  plaintiff  was  nonsuited  on  account  of 
this  variance,  although  the  unsoundness  of  which  he  complained, 
and  which  he  established  at  the  trial,  was  a  dropsy.^  So,  where  a 
declaration  in  ejectment  described  the  premises  as  situate  in  the 
united  parishes  of  St.  Giles-in  the- Fields,  and  St.  George,  Blooms- 
bury,  and  it  appeared  that  the  parishes  were  united  by  Act  of  Par- 
liament for  the  maintenance  of  the  poor,  but  for  no  other  purpose, 
and  that  the  premises  in  question  were  in  the  parish  of  St.  George, 
Bloom sbury,  this  was  held  to  be  a  fatal  variance,  though  it  was 
idle  to  suppose  that  the  defendant  could  have  been  misled  by  the 
misdescription.^  To  give  but  one  more  instance  where  hundreds 
might  easily  be  furnished,  a  plaintiff  was  nonsuited  in  an  action  for 
defamation,  because  the  libel,  as  set  out  on  the  record,  imputed 
to  him    "  mismanagement  or  ignorance,"   while,  according  to  the 


'  In  thecase  ofCaton  r.  Caton,  7  Ec.  &  Mar.  Cas.  28,  Dr.  Lushington  very 
sensibly  observed  :  "  The  maxim  of  the  Eccles.  Courts,  and  I  may  say  of  all 
other  courts,  is  to  decide  secundum  allegata  et  probata.  There  must  be  both 
charge  and  evidence  ;  the  party  cited  is  entitled  to  know  the  specific  charge 
for  the  purpose  of  defence.  *  *  The  difficulty  I  feel  is  to  avoid  the  error  of 
adhering  to  this  rule  with  pedantic  stridness,  and,  on  the  other  hand,  not  to 
weaken  a  rule  which  is  founded  on  one  of  the  great  principles  of  justice." 
See  IMalcomson  r.  Clayton,  13  Moo.  P.  C.  R.  206,  per  Ld.  Chelmsford  ;  and 
The  Ann,  Lush.  Adm.  R.  55,  in  which  last  case  little  trouble  seems  to  have 
been  taken  by  the  learned  judges  of  the  Privy  Council  to  avoid  the  "  pedantic 
strictness"  alluded  toby  Dr.  Lushington.  See,  also,  Tyrer,  v.  Henry,  14  Moo. 
P.  C.  R.  83;  Kilgour  v.  Alexander,  id.  177  ;  The  Haswell,  2  B.  &  Lush.,  Adm. 
R.  247  ;  The  Amalia,  id.  311. 

-  Jones  V.  Cowley,  4  B.  &  C.  445,  declared  most  justly  by  Alder-son,  B.,  to 
be  "a  great  disgrace  to  the  English  law,"  in  Hemming  v.  Parry,  6  C.  &  P. 
580.  ^  Goodtitle  v.  Lammiman,  2  Camp.  274. 

(3100) 


CHAP.  I.]  AMENDMENTfe  UNDER  SUCCESSIVE  STATUTES.  235 

evidence,  the  expressions  really  used  in  the  libel,  which  had  been 
destroyed,  were  "  ignorance  or  inattention."  ' 

§  220.  The  attention  of  the  Legislature  being  at  length  drawn  g  174 
to  the  flagrant  injustice  which  was  thus  constantly  occasioned,  a 
partial  renaedy  was  provided  in  1828  by  the  Act  of  9  G.  4,  c.  15  ;  ^ 
but  as  that  statute,  though  a  salutary  measure  so  far  as  it  went,  was 
found  to  afPord  a  very  inefiPectual  remedy  for  an  evil  which  all  suitors 
felt  to  be  highly  oppressive,  larger  powers  of  amendment  were 
granted  in  1833  to  the  English  judges,  and  in  1840  to  the  Irish 
judges,  by  the  respective  Acts  of  3  &  4  W.  4,  c.  42,  §§  23  &  24,' 
and  3  &  4  Y.,  c.  105,  §§  48  &  49.  In  1852,  the  Legislature 
again  interposed,  and  by  §§  34,  35,  37  &  222  *  of  the  Common 
Law  Procedure  Act,^  and  §§  49  &  53,^  of  the  Equity  Procedure 
Act  of  the  same  year,'  conferred  on  the  courts  additional  powers 
of  granting  amendments.  In  the  Common  Law  Procedure  Acts 
of  1854  and  1860  further  clauses  were  inserted,  authorising  the 
amendment  of  "  all  defects  and  errors  in  any  proceedings  under 
the  provisions "  of  those  Acts  respectively,  "  if  duly  applied 
for;"**  and  the  Irish  Common  Law  Procedure  Act  of  1853  also 
empowered  the  judges  in  that  country  to  amend  "  all  defects  and 
errors  in  any  writ,  pleading,  record,  or  other  proceeding  in  civil 
causes."  ^ 

§  221.  The  law  relating  to  amendments  was  not  further  altered 
till  the  Rules  of  Court  framed  under  the  Judicature  Acts  of  1873 
and  1875  came  into  operation.  Those  rules, — which  introduced 
into  the  different  Divisions  of  the  Supreme  Court  a  more  lax  practice 
than  formerly  prevailed, — were  annulled  in   1883;  and  the  rules, 


'  Brooks  V.  Blanshard,  1  C.  &  M.  779;  3  Tyr.  844,  S.  C. 

'■^  Repealed  as  to  Sup.  Ct.  in  Eng.,  except  as   to  criminal  proceedings,  by 
42«fe43V.,  c.  59. 

^  Repealed  by  44  &  45  V.,  c.  59.  *  Repealed  by  4G  &  47  V.,  c.  49. 

*  15  &  16  v.,  c.  76.     See  corresponding  sections  in  the  Irish  Act  ol  16  & 
17  v.,  c.  113,  U  85—91.  «  Repealed  by  44  &  45  V.,  c.  59. 

'  15  &  16   v.,  c.  86.     See  corresponding  sections  in  the  Irish  Act,  30  &  31 
v.,  c.  44,  U  154,  158. 

M7  &  18  v.,   c.   125,  ^  96;  23  &  24  v.,  c.  126,  g   36.     Repealed  by  46  & 
47  v.,  c.  49.  »  16  &  17  V.,  c.  113,  ^  231,  Ir. 

(3101) 


236  AMENDMENTS  UNDER  NEW  RULES  OF  1SS3.  [PAET  11. 

which  now  regulate  the  amendment  of  proceedings  in  the  Supreme 
Court,  are  embodied  in  Orders  XVI.,  XIX.,  and  XXVIII.  of  the 
new  Rules  of  that  year. 

§  221a.  It  should  be  specially  noted  that  not  one  of  these  Orders 
has  any  effect  on  criminal  proceedings,  or  on  proceedings  for  divorce 
or  other  matrimonial  causes;  but  that  the  first  two  differ  from  the 
third  in  this  respect,  that  the  former  are  inoperative  in  all  pro- 
ceedings, either  on  the  Crown  side,  or  on  the  Revenue  side,  of  the 
Queen's  Bench  Division,  while  the  last  applies  to  all  civil  proceed- 
ings on  the  Crown  side,  including  mandamus,  prohibition,  and  quo 
warranto,  and  to  all  proceedings  on  the  Revenue  side,  of  the  same 
Court.  ^ 

§  222.  The  three  most  important  rules  of  Order  XVI.  are  the 
2nd,  the  11th,  and  the  12th. ^  The  2nd  provides,  that,  "Where  an 
action  has  been  commenced  in  the  name  of  the  wrong  person  as 
plaintiff,  or  where  it  is  doubtful  whether  it  has  been  commenced  in 
the  name  of  the  right  plaintiff,  the  court  or  a  judge,  may,  if  satis- 
fied that  it  has  been  so  commenced  through  a  bond  fide  mistake, 
and  that  it  is  necessary  for  the  determination  of  the  real  matter  in 
dispute  so  to  do,  order  any  other  person  to  be  substituted  or  added 
as  pZainf/^,  upon  such  terms  as  may  be  just."  An  application 
under  this  rule  cannot  be  made  ex  parte,^  nor  can  it  succeed  unless 
there  has  been  a  bona  fide  mistake;  *  but  such  mistake  may  be  one 
of  law  as  well  as  of  fact.^  The  court  must  also  be  satified  that  the 
person,  whose  name  is  proposed  to  be  added,  has  consented  to  that 
step,  or,  at  least,  that  his  interests  have  been  duly  protected.® 

§  223.  Rule  11  provides  that  "  no  cause  or  matter  shall  be  de- 


1  Ord.  LXVIIL,  ER.  1  &  2. 

^  See  also  RR.  1  &  4  of  this  Order,  whicli  respectively  render  amendments 
unnecessary  in  cases  where  too  many  plaintiffs  or  defendants  have  been 
ioined.  SeeChild  v.  Stenning,  46  L.  J.,  Ch.  523  ;  L.  E.,  5  Ch.  D.  695,  S.  C; 
Booths.  Briscoe,  L.  R.,  2  Q.  B.  D.  496? 

»  Tildesley  v.  Harper,  L.  R.,  3  Ch.  D.  277,  per  Hall,  V.  C. 

*  Clowes  V.  Hilliard,  L.  R.,  4  Ch.  D.  413,  per  Jessel,  M.  R. 

5  Duckett  V.  Gover,  L.  R.,  6  Ch.  D.  82,  per  Jessel,  M.  R.;  46  L.  J.,  Ch. 
407,  S.  C. 

6  Turqiiand  v.  Fearon,  L.  R.,  4  Q.  B.  D.  280. 

(3102) 


CHAP. 


I.]  AMENDMENT   OF   PLEADINGS.  237 


feated  by  reason  of  the  misjoinder  or  nonjoinder  of  parties,  and  the 
court  may  in  every  cause  or  matter  deal  with  the  matter  in  con- 
troversy so  far  as  regards  the  rights  and  interests  of  the  parties 
actually  before  it.  The  court  or  a  judge  may,  at  any  stage  of  the 
proceedings,  either  upon  or  without  the  application  of  either  party, 
and  on  such  terms  as  may  appear  to  the  court  or  a  judge  to  be  just, 
order  that  the  names  of  any  parties  improperly  joined,  whether  as 
plaintiffs  or  as  defendants,  be  struck  out,  and  that  the  names  of  any 
parties,  whether  plaintiffs  or  defendants,  who  ought  to  have  been 
joined,  or  whose  presence  before  the  court  may  be  necessary  in 
order  to  enable  the  court  effectually  and  completely  to  adjudicate 
upon  and  settle  all  the  questions  involved  in  the  cause  or  matter,  be 
added.'' ' 


224  Eule  12  provides,  that  "  any  application  to  add,  or  strike 
out,  or  substitute  a  plaintiff  or  defendant  may  be  made  to  the  court 
or  a  judge  at  any  time  before  trial  by  motion  or  summons,  or  at  the 
trial  of  the  action  in  a  summary  manner."  It  would  seem  that, 
under  this  Rule,  a  County  Court  Judge  might  amend  a  misjoinder 
of  defendants  in  a  cause  sent  to  him  for  trial  from  the  High  Court." 
Order  XIX.  has  only  one  rule  bearing  on  the  subject,'^  and  that 
provides,  "that  the  court  or  a  judge  may  at  any  stage  of  the  pro- 
ceedings order  to  be  struck  out  or  amended  any  matter  in  any  in- 
dorsement or  pleading,  which  may  be  unnecessary,  or  scandalous, 
or  which  may  tend  to  prejudice,*  embarrass,^  or  delay  the  fair  trial 
of  the  action  ;  and  may  in  any  such  case,  if  they  or  he  shall  think 


^  The  Rule  goes  on  to  provide,  that  if  a  plaintiif  be  added,  it  must  be  with 
his  consent  in  writing,  and  that  if  a  defendant  be  added,  he  must  be  served 
■with  a  summons  or  a  notice. 

2  See  Bennison  v.  Wallier,  7  Law  Rep.,  Ex.  143. '  ^  R.  27 

*  As  to  when  a  plaintiff  will  not  be  held  to  have  prejudiced  the  fair  trial 
of  an  action  by  asking  for  alternative  relief,  see  Bagot  v.  Easton,  47  L.  J., 
Ch.  22.5,  per  Ct.  of  App. 

=  Heap  V.  Harris,  L.  R.,  2  Q.  B.  D.  630  ;  46  L.  J.,  Q.  B.  761,  S.  C;  Davy 
V.  Garrett,  L.  R.,  7  Ch.  D.  473,  per  Ct.  of  App.;  47  L.  J.,  Ch.  218,  S.  C; 
Stokes  V.  Grant,  L.  R.,  4  C.  P.  D.  25  ;  Philipps  v.  Philipps,  48  L.  J.,Q.  B. 
135,  per  Ct.  of  App.;  L.  R.,  4  Q.  B.  D.  127,  S.  C.  This  last  case  is  important 
as  showing  what  statements  must  be  alleged  in  an  action  for  the  recovery  of 
land  of  which  the  plaintiff  has  never  been  in  possession. 

(3103) 


238  AMENDMENT    OF    PLEADINGS.  [tart   II. 

fit,  order  the  costs  of  the  application  to  be  paid  as  between  solicitor 
and  client." 

§  225.  Order  XXVIII.  is  as  follows  : — "Amendment.^ 

1.  The  court  or  a  judge  may,  at  any  stage  of  the  proceedings, 
allow  either  party  to  alter  or  amend  his  indorsement^  or  pleadings  iu 
such  manner  and  on  such  terms  as  may  be  just,  and  all  such 
amendments  shall  be  made  as  may  be  necessary  for  the  purpose 
of  determining  the  real  questions  in  controversy  between  the 
parties. 

2.  The  plaintifp  may,  without  any  leave,  amend  his  statement  of 
claim,  whether  indorsed  on  the  writ  or  not,  once  at  any  time  before 
the  expiration  of  the  time  limited  for  reply  and  before  replying,  or, 
where  no  defence  is  delivered,  at  any  time  before  the  expiration  of 
four  weeks  from  the  appearance  of  the  defendant  who  shall  have  last 
appeared. 

3.  A  defendant  who  has  set  up  any  counter-claim  or  set  oflP  may, 
without  any  leave,  amend  such  counter-claim  or  set-off  at  any  time 
before  the  expiration  of  the  time  allowed  him  for  answering  the 
reply,  and  before  such  answer,  or  in  case  there  be  no  reply, 
then  at  any  time  before  the  expiration  of  twenty- eight  days  from 
defence. 

4.  Where  any  party  has  amended  his  pleading  under  either  of 
the  last  two  preceding  rules,  the  opposite  party  may,  within  eight 
days  after  the  delivery  to  him  of  the  amended  pleading,  apply  to  the 
court,  or  a  judge,  to  disallow  the  amendment,  or  any  part  thereof, 
and  the  court  or  judge  may,  if  satisfied  that  the  justice  of  the  case 
requires  it,  disallow  the  same,  or  allow  it  subject  to  such  terms  as 
to  costs  or  otherwise  as  may  be  just.^ 

5.  Where  any  party  has  amended  his  pleading  under  Rule  2  or 
3,  the  opposite  party  shall  plead  to  the  amended  pleading,  or  amend 
his  pleading,  within  the  time  he  then  has  to  plead,  or  within  eight 
days  from  the  delivery  of  the  amendment,  whichever  shall  last 
expire  ;  and  in  case  the  opposite  party  has  pleaded  before  the  deli- 

^  As  to  amendmeut  of  pleadings  in  the  Consistorj'  Ct.  of  London,  see  Eeg. 
Gen.  of  1877,  relating  to  that  court,  Ord.  III. 

2  See  Cornish  v.  Hockin,  1  E.  &  B.  602  ;  Leigh  v.  Baker,  2  Com.  B.,  N.  S. 
367. 

'  See  Bourne  v.  Coulter  53,  L.  J.,  Ch.  699, where  held  by  Kay,  J.,  that  Avhen 
a  plaintiff  had  amended  his  claim  by  altering  the  entire  cause  of  action,  the 
proper  course  for  the  defendant  was  to  apply  to  the  Court  to  disallow  the  amend- 
ment, or  to  allow  it  on  terms 

(3104) 


CHAP. 


I.]  AMENDMENT  OF  PLEADINGS.  239 


very  of  the  amendment,  and  does  not  plead  again  or  amend  within 
the  time  above  mentioned,  he  shall  be  deemed  to  rely  on  his  original 
pleading  in  answer  to  such  amendment.' 

6.  In  all  cases  not  provided  for  by  the  preceding  rules  of  this 
Order,  application  for  leave  to  amend  may  be  made  by  either  party 
to  the  court,  or  a  judge,  or  to  the  judge  at  the  trial  of  the  action, 
and  such  amendment  may  be  allowed  upon  such  terms  as  to  costs  or 
otherwise,  as  may  be  just. 

7.  If  a  party,  who  has  obtained  an  order  for  leave  to  amend,  does 
not  amend  accordingly  within  the  time  limited  for  that  purpose  by 
the  order,  or  if  no  time  is  thereby  limited,  then  within  fourteen 
days  from  the  date  of  the  order,  such  order  to  amend  shall,  on  the 
expiration  of  such  limited  time  as  aforesaid,  or  of  such  fourteen 
days,  as  the  case  may  be,  become  ipso  facto  void,  unless  the  time  is 
extended  by  the  court  or  a  judge. 

8.  An  indorsement  or  pleading  may  be  amended  by  written 
alterations  in  the  copy  which  has  been  delivered,  and  by  additions 
on  paper  to  be  interleaved  therewith  if  necessary,  unless  the  amend- 
ments require  the  insertion  of  more  than  144  words  in  any  one 
place,  or  are  so  numerous  or  of  such  a  nature  that  the  making  them 
on  writing  would  render  the  document  difficult  or  inconvenient  to 
read,  in  either  of  which  cases  the  amendment  must  be  made  by  de- 
livering a  print  of  the  document  as  amended. 

9.  Whenever  any  indorsement  or  pleading  is  amended,  the  same, 
when  amended,  shall  be  marked  with  the  date  of  the  order,  if  any, 
under  which  the  same  is  so  amended,  and  of  the  day  on  which  such 
amendment  is  made,  in  manner  following,  viz  ; — 

'  Amended  day  of  ,  ,  pursuant  to  order  of 

dated  the  of  .' 

10.  Whenever  any  indorsement  or  pleading  is  amended,  such 
amended  document  shall  be  delivered  to  the  opposite  party  within 
the  time  allowed  for  amending  the  same. 

11.  Clerical  mistakes  in  judgments  or  orders,  or  eiTors  arising 
therein  from  any  accidental  slip  or  omission,  may  at  any  time  be 
corrected  by  the  court,  or  a  judge,  on  motion  or  summons  withoiit 
an  appeal. 


1  See  Boddy  v.  Wall,  47  L.  J.,  Ch.  112;  L.  R.,  7  Cli.  D.  IGl,  S.  C. 

(:]10.-,) 


240  AMENDMENT  OF  PLEADINGS.  [PART  II. 

12.  The  court  or  a  judge  may  at  any  time,  and  on  such  terms  as 
to  costs  or  otherwise  as  the  court  or  judge  may  think  just,  amend 
any  defect  or  error  in  any  proceedings;'  and  all  necessary  amend- 
ments shall  be  made  for  the  purpose  of  determining  the  real  ques- 
tion or  issue  raised  by  or  depending  on  the  proceedings. 

13.  The  costs  of  and  occasioned  by  any  amendment  made  pur- 
suant to  Rules  2  &  3  of  this  Order  shall  be  borne  by  the  party 
making  the  same,  unless  the  court  or  a  judge  shall  otherwise 
order." 


§  226.  From  these  Rules  it  will  be  seen,  1st,  that  the  court  or  a 
judge  may  now,  at  any  stage  of  the  proceedings,  allow  either  party 
to  alter  or  amend  his  indorsement  or  pleadings;  2nd,  that  all  such 
amendments  shall  be  made  as  may  be  necessary  for  the  purpose  of 
determining  the  real  questions  in  controversy;  3rd,  that,  without 
leave,  but  subject  to  the  risk  of  having  to  pay  costs,  the  plaintiff 
may  amend  his  statement  of  claim,  and  the  defendant  may  amend 
his  counterclaim  or  set-off;  4th,  that  the  application  for  leave  to 
amend  any  pleading  may  be  made  by  either  party  to  the  court  or  a 
judge,  or  to  the  judge  at  the  trial  of  the  action;  5th,  that  pleadings 
may  be  amended  by  striking  out  any  scandalous  or  embarrassing 
matter;  and  lastly,  that  any  of  these  respective  amendments  may 
be  allowed  upon  such  terms  as  to  costs  or  otherwise  as  may  be  just. 

§  227.  The  powers  of  amendment  conferred  on  the  judges  by 
these  rules  will  unquestionably  be  productive  of  signal  benefit  to 
suitors,  if,  in  furtherance  of  this  salutary  design,  they  are  exercised, 
as  they  ought  to  be,  in  a  liberal  spirit.^     As  yet  however   no  very 


^  See  the  Immacolata  Concezione,  L.  R.,  9  P.  D.  42,  where  the  admiralty 
judge,  under  this  Rule,  sent  back  a  special  case  to  be  amended  by  the  Regis- 
trar. 

2  See  Parry  v.  Fairhurst,  2  C.  M.  &  R.  196,  per  Alderson,  B. ;  Sainsbury  v. 
Matthews,  4  M.  &  W.  347,  per  Parke,  B. ;  Ward  v.  Pearson,  5  M.  &  W.  18,  per 
id.;  Evans  v.  Fryer,  10  A.  &  E.  615,  per  Williams,  J.;  Pacific  St.  Navig.  Co.  v. 
Lewis,  16  M.  &  W.  792,  per  Pollock,  C.  B. ;  Smith  v.  Knowelden,  2  M.  &  Gr. 
561;  9  Dowl.  402,  S.  C.  See,  also,  St.  Losky  v.  Green,  9  C.  B.,  N.  S.  376,  per 
Byles,  J.,  who  observes  in  the  true  spirit  of  an  enlightened  law  reformer, — 
"Various  statutes  have,  from  time  to  time  for  more  than  500  years,  been 
passed,  from  the  14  Ed.  3,  c.  6,  downwards,  to  facilitate  amendments, 
but    the    strict  and    almost    perverse    construction   which    the   judges    put 

(3106) 


CHAP.  I.]  AMENDMENT  OF  PLEADINGS.  241 

important  decisions  have  been  pronounced  upon  the  subject,  though 
a  few  cases,  determined  under  the  Kules  of  1875,  will  serve  in  some 
degree  to  illustrate  the  operation  of  the  new  law. 


§  228.  Perhaps  the  most  important  of  these  cases  is  that  of 
Budding  v.  Murdock/  That  was  a  suit  to  enforce  an  alleged  right 
to  a  flow  of  water.  The  plaintiff  rested  his  title,  first,  on  a  deed, 
and,  next,  on  a  prescription,  but  at  the  hearing"  he  failed  on  both 
points.  He  then  contended  that  the  watercourse  had  been  con- 
structed by  him  at  considerable  expense,  and  that  the  defendant's 
ancestors  had  stood  by  and  acquiesced,  thus  giving  him  a  title  to 
maintain  his  suit.  Thereupon  the  Master  of  the  Rolls  gave  him 
leave  to  amend,  the  defendant  being  at  liberty  to  put  in  a  further 
answer,  both  parties  to  bring  forward  fresh  evidence,  and  the  costs 
to  be  reserved.  In  King  v.  Corke  ^  the  plaintifP  had  charged  the 
defendant  with  wilful  neglect,  but  had  not  alleged  any  particular 
instance,  and  at  the  hearing  he  was  allowed  to  amend  the  bill  by 
specifying  certain  acts  which  had  been  disclosed  by  the  answer,  but 
the  terms  imposed  upon  him  were,  first,  that  the  defendant  should 
have  leave  to  answer  further,  and,  next,  that  he  himself  should  not 
go  into  any  new  evidence,  and  should  pay  the  costs  of  the  day.  In 
another  case  *  a  bill  to  set  aside  a  settlement  on  the  ground  of  fraud 
and  surprise  was  allowed  to  be  amended  at  the  hearing,  by  setting 
up  a  case  of  infirmity  of  mind  on  the  part  of  the  settlor,  but  there 
also  the  defendant  was  permitted  to  put  in  a  further  answer  and 
evidence.  A  defendant  has  also  been  allowed,  after  putting  in  with 
other  defendants  a  joint  statement  of  defence,  to  deliver  a  separate 
supplemental  statement,  he  having  been  advised  that  an  independent 
ground  of  defence  was  open  to  him.^     Of  course  in  this  case  he  was 


upon  them,  rendered  them  nearly  abortive.  But  now  a  totally  different 
principle  prevails.  Every  amendment  is  to  be  made,  which  is  necessary  for 
determining  the  real  question  in  controversy  between  the  parties." 

1  L.  R.,  1  Ch.  D.  42,  per  Jessel,  M.  R.:  45  L.  J.,  Ch.  213,  S.  C. 

"^  Had  this  been  a  trial  hy  jury  the  result  might  have  been  different.  See 
post,  I  240. 

'  L.  R.,  1  Ch.  D.  57  ;  45  L.  J.,  Ch.  190,  S.  C;  Mozeley  v.  Cowie,  47  L.  J., 
Ch.  271,  per  Fry,  J. 

*  Roe  V.  Davies,  L.  R.,  2  Ch.  D.  729. 

*  Cargill  V.  Bower,  46  L.  J.,  Ch.  175. 

16   LAW  OF  EVID. — V.  I.  (3107) 


2i2  AMENDMENTS  ALLOWED    UNDER   OLD    LAW.  [PART  II. 

ordered  to  indemnify  the  plaintifif  against  the  costs  rendered  neces- 
sary by  the  amendment. 


§  229.  In  the  case  of  Tildesley  v.  Harper  '  the  facts  were  as 
follows.  The  statement  •  of  claim  alleged  that  the  defendant,  in 
order  to  induce  the  plaintiff  to  grant  a  lease,  had  offered  him  a 
bonus,  or,  in  other  words,  a  bribe  of  £500,  and  had  actually  paid 
him  £200.  These  allegations  were  specifically  denied  in  the  state- 
ment of  defence,  but  the  defendant  did  not  go  on  to  deny  that  any 
bribe  had  been  offered  or  given.  On  these  pleadings,  the  learned 
judge  held  at  the  trial  that  the  giving  of  some  bribe  was  admitted 
on  the  statement  of  defence  ;  and — refusing  the  defendant's  appli- 
cation to  allow  an  amendment — gave  judgment  for  the  plaintiff. 
The  defendant  appealed  ;  and  the  Lords  Justices,  apparently  almost 
as  a  matter  of  course,  decided  that  the  judgment  must  be  set  aside, 
with  liberty  to  defendant  to  amend  his  statement  on  payment  of 
costs,  the  plaintiff  being  also  at  liberty  to  amend  his  pleadings,  if 
necessary.  Lord  Justice  Bramwell  in  this  case,  while  discussing 
the  circumstances  under  which  the  power  of  amendment  should  be 
exercised,  very  justly  observed,  that  "leave  to  amend  should  always 
he  given,  unless- the  judge  were  satisfied  that  the  party  applying  for 
it  either  had  acted  mala  fide,  or  had  by  his  blunder  caused  some 
injury  to  his  opponent,  which  could  not  be  adequately  compensated 
by  the  payment  of  costs  or  otherwise.""  Again,  it  has  been  held 
by  one  of  the  Vice-Chancellors,  that  an  action  might,  by  amendment 
of  the  writ  and  statement  of  claim,  be  turned  into  an  information 
and  action  without  predjudice  to  a  pending  motion  in  the  action,  the 
sanction  of  the  Attorney- General  having  first  been  obtained.^  As 
all  disputed  questions  of  amendment  depend  upon  the  discretion 
of  the  judge,  the  Court  of  Appeal  ^  will  be  very  unwilling  to  interfere 
with  that  discretion,  unless  in  a  case  where  it  is  obvious  that  some 
serious  mischief  would  result  from  non-interference.^ 


)      1  48  L.  J.,  Ch.  495.  ^  M.  496. 

:(    'Caldwell  v.  Pagham  Harbour  Reclamation  Co.,  L.  R.,  2  Ch.  D.  221,  per 
Hall,  V.-C. 

*  See  Rules  of  Sup.  Ct.,  1883,  Orel.  Ivili.,  R.  4,  cited  post,  ?  1883. 
^  Golding  r.  Wharton  Salt  Works  Co.,  L.  R.,  1  Q.  B.  D.  374,  per  Ct.  of  App. 

(3108) 


CHAP.  I.]  AMENDMENTS    ALLOWED    UNDER    OLD    LAW.  243 

§  230.  As  the  decisions  just  cited  by  no  means  exhaust  the 
subject,  it  will  still  be  advisable,  for  the  purpose  of  explaining  the 
general  nature  of  variance,  and  of  marking  the  distinction  between 
material  and  immaterial  allegations,  to  refer  to  some  of  the  cases 
^decided  under  the  earlier  statutes.'  And  first,  as  to  those  cases  in 
which  an  amendment  has  beeti  allowed. 


§  231.  In  the  case  of  May  v.  Footner,^  the  declaration  stated  §  182a 
that  the  defendant  had  entered  certain  land  of  the  plaintiff.  The. 
real  questions  in  dispute  were,  first,  whether  the  land  was  the 
plaintiff's  property;  and,  next,  whether  there  was  a  public  footway 
across  it.  At  the  trial,  it  turned  out  that  the  close  in  question  was, 
at  the  time  of  the  trespass,  in  the  actual  possession  of  a  tenant  of 
the  plaintifi",  whereupon  the  plaintiff  was  allowed  by  the  judge  to 
amend  the  declaration,  so  as  to  adapt  it  to  an  injury  to  his  rever- 
sionary interest.  The  court  subsequently  held  that  this  amend- 
ment had  been  properly  made.  In  another  case,  where  issue  had 
been  taken  on  an  allegation  that  a  certain  cargo  of  goods  was 
not  delivered  in  March,  it  appeared  at  the  trial  that  this  was 
strictly  true,  but  that  it  did  not  raise  the  real  question,  which 
was  whether  the  cargo  had  been  delivered  in  such  time  that  the 
defendant  was  bound  to  accept  it.  Thereupon  the  judge,  at  the 
instance  of  the  plaintiff,  amended  the  declaration  by  inserting  an 
averment  that  the  plaintiff,  at  the  defendant's  request,  had  delayed 
the  shipment,  and  that  the  defendant  had  promised  to  accept  a  de- 
livery of  that  shipment  within  a  reasonable  time,  and  had  exonerated 
the  plaintiff  from  delivering  in  March.  This  amendment  was  also 
upheld  by  the  court  above.  ^ 

§  232.  In  an  action  of  slander,  where  the  words  charged  in  the    ^  134 
declaration  were,  "  S.   is  to  be  tried  at  the  Old  Bailey,  &c."  and 


^  Those  who  wish  to  understand  the  very  old  doctrine  of  variance,  and  to 
trace  its  oppressive  operation  previously  to  the  passing  of  the  remedial 
statutes,  Avill  find  the  subject  fully  and  ably  treated  in  1  St.  Ev.  430 — 494. 
See,  also,  1  Ph.  Ev.  503,  et.  seq. 

-  25  L.  J.,  Q.  B.  32  ;  5  E.  «fe  B.  505,  S.  C. 

'  Tennyson  v.  O'Brien,  5  E.  &  B.  497.  See  Savage  v.  Canning,  I.  R.,  1 
C.  L.  434,  per  C.  P. 

(3109) 


244  AMENDMENTS    ALLOWED   UNDER   OLD   LAW.  [pART  II. 

those  proved  to  have  been  really  spoken  were,  "/  have  heard  that 
S.  is  to  be  tried,  &c."  the  court  held  that  the  variance  might  be 
amended  on  payment  of  costs,  though  it  was  urged,  that  as  the  ex- 
pression "  I  have  heard  "  reduced  the  charge  fronn  a  direct  assertion 
to  mere  idle  gossip,  the  defendant  was  prejudiced  by  the  amend- 
ment, because,  had  these  words  been  originally  declared  upon,  he 
might  have  suffered  judgment  by  default,  or  otherwise  have  pleaded 
a  justification.'  Mr.  Justice  Bosanquet  observed,  that  the  intro- 
duction of  the  words  "  I  have  heard  "  left  the  slander  as  actionable 
as  before,  although  the  amount  of  damages  might  be  lessened; — 
that  a  variance,  which  is  not  material  to  the  issue  raised,  but 
which  may  afPect  the  quantum  of  damages,  was  not  within  the 
contemplation  of  the  legislature  when  speaking  of  the  "  merits  of 
the  case;" — and  that,  as  the  damages  were  given  for  the  words  as 
joroved,  and  as  the  defendant  did  not  apply  to  amend  his  pleadings 
or  to  put  off  the  trial,  it  did  not  appear  how  he  could  have  been 
prejudiced  in  his  defence.'  This  case,  therefore,  is  important,  as 
phowing  that  an  amendment  should  not  be  refused,  simply  because 
it  may  lessen  the  amount  of  damages,  provided  that  it  cannot 
affect  the  substantial  line  of  defence.  In  another  action  of  slander, 
where  the  words  alleged  to  have  been  spoken  of  and  concerning  the 
plaintiff,  as  a  surgeon,  were,  "  There  have  been  many  inquests  held 
upon  persons  who  have  died,  beeause  he  attended  them;"  but  those 
proved  were,  "  Several  have  died  that  he  (the  plaintiff)  has  attended, 
and  inquests  have  been  held  on  them,"  the  judge  amended  the 
record,  and  the  court  held  that  he  was  justified  in  so  doing.^  So, 
where  the  only  variance  was,  that  the  words  stated,  in  the  declara- 
tion were  in  the  English  language,  while  the  expressions  proved 
were  Welsh,  an  amendment  was  allowed.* 

§  233.  In  another  action  of  defamation,  an  amendment  was  held    ^  jss 
to  have  been  properly  made  when,  on  objection  being  taken  that  the 
declaration  contained  the  mere  substance  of  the  libel,  a  verbatim 


1  Smith  V.  Knowelden,  2  M.  &  Gr.  561  ;  9  DowL  402  ;  2  Scott,  N.  R.  G57, 
S.  C. 

2  2  M.  &  Gr.  565. 

'  Southee  v.  Denny,  1  Ex.  E.  196. 
*  Jenkins  v.  Phillips,  9  C.  &  P.  766,  per  Coleridge,  J. 

(3110) 


CHAP,  1.]  AMENDMENTS  ALLOWED  UNDER  OLD  LAW.  245 

copy  of  the  defendant's  letter  was  set  out  on  the  record.'  So,  where 
the  declaration  alleged  that  the  defendant  published  a  libel,  ^^con- 
tained in  and  being  an  article  in  a  certain  tveekly  paper,  called  the 
''Paul  Pry,''  "  and  it  was  proved  that  he  gave  a  slip  of  printed  paper, 
containg  the  libellous  matter,  to  several  persons  to  read;  but  it 
did  not  clearly  appear  that  it  had  been  cut  from  that  newspaper, 
the  record  was  amended  without  any  terms  being  imposed  on  the 
plaintiff,  by  striking  out  the  allegation  marked  in  italics."  Again, 
when  a  plea  of  justification,  in  an  action  for  a  malicious  prosecution 
on  a  charge  of  receiving  stolen  goods,  alleged  that  the  goods  had 
been  stolen  by  "some  person  unknown,"  the  judge  at  the  trial  was 
held  to  have  rightly  allowed  these  three  words  to  be  struck  out,  and 
the  name  of  the  party  who  was  proved  to  have  taken  the  goods  to 
be  substituted  in  their  place. ^ 

0 

§  23<1.  The  case  of  Whitwill  v.  Scheer*  is  important  as  deciding  ^  180 
that,  where  a  declaration  in  assumpsit  had  stated  a  special  contract, 
and  had  then  contained  an  erroneous  allegation  in  conformity  with 
its  supposed  legal  effect,  such  allegation  might  either  be  struck 
out,  or  so  altered  as  to  express  correctly  the  rekl  meaning  of  the 
contract. 

§  235.  In  several  cases  an  amendment  has  been  made,  where  ?  jgy 
the  contract,  or  tort,  or  custom  declared  upon,  has  turned  out  to 
be  either  more  or  less  comprehensive  than  the  one  proved.  **  Thus, 
the  statement  of  a  general  warranty  of  a  horse  has  been  amended 
by  substituting  an  allegation  of  a  qualified  warranty,  where  the 
defence  did  not  depend  upon  the  qualification  introduced.^  So, 
where  the  delaration  alleged  that  the  defendant  promised  to  lay 


1  Saunders  v.  Bates,  1  H.  &  N.  402. 

^  Foster  v.  Pointer,  9  C.  &  P.  718,  per  Gurney,  B.  See  also  Pater  v.  Baker, 
3  Com.  B.  831. 

'^  Pratt  V.  Hanbury,  14  Q.  B.  190.  See,  also,  West  v.  Baxendale,  9  Com.  B. 
141;  and  Hailes  v.  Marks,  30  L.  J.,  Ex.  389;    7  H.  &  N.  56,  S.  C. 

*  8  A.  &  E.  301;  3  N.  &  P.  391,  S.  C.  But  see  Bowers  v.  Nixon,  2.C.  & 
Kir.  372,  cited  post,  I  239. 

*  See  Pacific  St.  Navig.  Co.  v.  Lewis,  16  M.  &  W.  783. 

®  Hemming  v.  Parry,  6  C.  &  P.  580,  per  Alderson,  B.,  Mash  v.  Densham,  1 
M.  &  Rob.  442,  per  id. ;  Eead  v.  Dunsmore,  9  C.  &  P.  588. 

(3111) 


246  AMENDMENTS  ALLOWED  UNDER  OLD  LAW.  [PART  II. 

out  certain  money  in  the  purchase  of  a  government  annuitij,  and 
then  aven-ed  as  a  breach,  that  he  had  not  done  so,  but  had  placed 
it  in  the  hands  of  some  private  company,  an  amendment  was 
allowed  by  substituting  the  word  "  security  "  for  "  annuity,"  the 
evidence  showing  that  the  money  had  in  fact  been  received  for  the 
purpose  of  investing  it  in  some  government  security,^ 

§  236.  In  other  actions  a  like  amendment  has  been  allowed,  |  189 
where  a  contract,  a  duty,  an  instrument,  or  other  matter  has  been 
misdescribed  on  the  record.  Thus,  in  Hanbury  v.  Ella,"  the 
declaration  stated  that  the  defendants,  in  consideration  of  the 
plaintiffs  supplying  beer  to  a  third  party,  promised  to  j^ay  them 
the  amount  of  the  beer  so  supplied,  and  in  support  of  this 
statement  a  written  guarantee  was  put  in.  This  was  a  variance, 
since  the  declaration  showed  an  original  liability  created,  while 
the  evidence  merely  proved  a  collateral  one,  but  the  court  allowed 
an  amendment  to  be  made,  by  substituting  the  word  "guarantee" 
for  "  pay,"  as  the  mistake  could  not  under  the  circumstances 
have  misled  the  defendants.  So,  the  record  has  been  amended, 
where  the  declaration  alleged  an  undertaking  by  the  defendants 
to  carry  and  deliver  certain  goods,  and  the  proof  was  that  the 
undertaking  was  to  forward  them;^ — where  in  an  action  by  the 
indorsee  against  the  drawer  of  a  bill  of  exchange,  the  plaintiff 
alleged  a  presentment  to  the  acceptor,  but  proved  that  the 
acceptor  was  de"ad,  and  that  the  bill  had  been  presented  to  his 
executor;* — where  the  holder  of  a  cheque,  in  suing  the  maker, 
alleged  in  his  declaration  that  he  had  given  due  notice  of  dis- 
honour, but  merely  proved  at  the  trial  that  he  had  a  valid  excuse 
for  giving  no  notice;^ — where,  to  an  action  on   a  bill  of  exchange. 


1  Gurford  v.  Bayley,  3  I\I.  &  Gr.  781;  4  Scott,  N.  R.  398;  1  Dowl.  N.  S. 
519,  S.  C.  See,  also,  Evans  v.  Fryer,  10  A.  &  E.  609;  2  P.  «&  D.  501,  S.  C; 
May.  of  Carmarthen  v.  Lewis,  6  C.  &  P.  608. 

M  A.  &  E.  61 ;  3  N.  &  U.  438,  S.  C. 

•'  Parry  «.  Fairhurst,  2  C.  M.  &  E.  190;  5  Tyr.  685,  S.  C. 

*  Caunt  V.  Thompson,  7  Com.  B.  400;  6Dowl.  &  L.  621,  S.  C. 

^  Jackson  v.  Carrington,  2  C.  &  Kir.  750,  per  Parke,  B.  In  this  case  the 
trial  was  postponed,  and  the  plaintiff  had  to  pay  the  cost  of  the  day  and  of 
the  amendment.  Whether  the  variance  without  amendment  would  have  been 
fatal,  compare    Burgh   v.  Legge,  5  M.  &  W.  418;  Cordery  v.  Colvin,  14  Com. 

(3112;    ■ 


CHAP.  I.]  AMENDMENTS    ALLOWED    UNDER    OLD   LAW,  247 

the  plea  averred  that  the  bill  was  accepted  on  an  agreement  that 
it  should  be  in  satisfaction  of  a  large  sum  lost,  in  part  at  hazard, 
and  in  part  at  vingt-iin,  and  no  proof  was  given  of  money  lost  at 
vingt-un  ;'  — where  a  guarantee  was  alleged  in  the  declaration  to 
have  been  given  in  consideration  of  advances  to  be  made  by  A.,  and 
it  appeared  by  the  guarantee  that  the  advances  might  be  made  by 
A.,  or  by  any  member  of  his  firm  ;  ^ — where  an  agreement  to  grant 
a  lease  was  stated  in  the  pleadings  to  have  been  made  between  the 
defendant  and  the  plaintiff,  and  it  appeared  at  the  trial  that  the 
real  agreement  was  between  the  defendant  and  two  other  persons, 
devisees  in  trust  under  the  will  of  one  Miller  of  the  first  part,  and 
the  plaintiff  of  the  other  part,  but  that  it  had  been  executed  by  the 
plaintiff  and  defendant  alone  f — where  the  contract,  as  alleged  in 
the  declaration,  was  that  the  defendant  should  build  a  room,  booth, 
or  building,  and  fit  it  up  according  to  certain  plans  agreed  upon,  for 
the  sum  of  20Z.,  by  the  28th  of  June,  and  that  proved  was,  to  erect 
certain  seats  and  tables,  to  be  completed  four  or  five  days  before  the 
28th  of  June,  for  25Z.,  and  it  did  not  appear  that  any  plans  had 
been  prepared,  but  the  defendant  had  pleaded  non-assumpsit,  and 
that  the  contract  was  rescinded  by  consent ;  * — where  similar  pleas 
had  been  pleaded  to  a  declaration,  which  stated  a  contract  by  the 
defendant  to  deliver  to  the  plaintiff  certain  potatoes  within  a  reason- 
able time,  to  be  paid  for  on  delivery,  and  the  evidence  established  a 
contract  that  the  plaintiff  should  have  the  potatoes  at  digging  up 
time,  and  that  he  should  find  diggers ;  ^ — where^  in  an  action  on  a 
bond,  the  penalty  was  stated  in  the  declaration  to  be  260/.,  and  it 


B.,  N.  S.  374  ;  S.  C,  nom.  Cordery  v.  Colville,  32  L.  J.,  C.  P.  210  ;  Killby  v. 
Eochussen,  18  Com.  B.,  N.  S.  357 ;  and  Woods  v.  Dean,  32  L.  J.,  Q.  B.  1. 

1  Cooke  V.  Stratford,  13  M.  &  W.  379  ;  Masters  v.  Barrets,  2  C.  &  Kir.  715. 

2  Chapman  v.  Sutton,  2  Com.  B.  634,  644  ;  Boyd  v.  Moyle,  id.  644  ;  Hassall 
V.  Cole,  18  L.  J.,  Q.  B.  257. 

'^  Boys  V.  Ansell,  5  Bing.  N.  C.  390.  The  court  in  this  case  held  it  un- 
necessary to  consider  whether  or  not  the  variance  was  fatal,  as  it  might 
clearly  be  amended.     See  Gregory  v.  Duff,  13  Q.  B.  608. 

*  Ward  V.  Pearson,  5  M.  &  W.  16  ;  7  Dowl.  382,  S.  C.  In  this  case  the 
contract  as  proved  differed  from  that  alleged  in  the  nature  of  the  work  to  be 
done,  in  the  time  for  doing  it,  and  in  the  price  ;  yet  the  court  properly  held 
that  this  was  precisely  the  case  which  the  Act  of  Parliament  was  meant  to 
meet.     See  Jones  v.  Hutchinson,  10  Com.  B.  515. 

*  Sainsbury  v.  Matthews,  4  M.  &  W.  343  ;  7  Dowl.  23,  S.  C. 

(3113) 


248  AMENDMENTS    ALLOWED    UNDER    OLD    LAW.  [pARI   11. 

appearea  on  the  face  of  the  instrument  to  be  200/.;' — where  the 
plaintiff  brought  his  action  against  a  sheriff  for  an  escape,  and 
proved  a  negligent  omission  to  arrest;^ — where  an  instrument, 
declared  on  as  a  bill  of  exchange,  appeared  by  the  evidence  to  be  a 
promissory  note;^  and  where  a  note  was  sot  out  in  the  declaration 
as  made  by  the  defendant,  dated  the  9th  of  November,  1838,  and 
payable  on  demand,  and  the  instrument  proved  at  the  trial  was  a 
joint  and  several  note,  made  by  the  defendant  and  his  wife,  dated 
the  6th  of  November,  1837,  and  payable  twelve  months  after  date.* 
In  this  last  case,  the  defendant  had  pleaded  that  he  did  not  make 
the  note,  and  the  instrument  produced  differed  from  that  declared 
upon,  in  its  date,  in  the  parties  to  it,  and  in  its  duration;  but  there 
being  no  proof  of  the  existence  of  any  other  note  between  the  parties, 
Mr.  Baron  Alderson  expressed  his  opinion  that  "  this  was  just  the 
case  in  which  the  Legislature  intended  that  the  discretionary  power 
of  amendment  should  be  exercised."  * 


§  237.  Upon  the  trial  of  an  issue  of  nul  tiel  record, — which,  be  §  183 
it  remembered,  must  be  determined  by  the  court,  and  not  by  a 
judge  and  jury," — the  court  amended  the  declaration  by  inserting 
therein  the  true  date  of  the  judgment  recovered.'  In  Edwards  v. 
Hodges,*  a  plea  of  "  Not  guilty  by  statute  "  was  amended  by  insert- 
ing in  the  margin  an  Act  which  had  been  omitted;  and  in  Buckland 
V.  Johnson,"  a  plea,  not  technically  proved  by  the  evidence,  was 
amended  at  Nisi  Prius  so  as  to  raise  the  substantial  question,  with- 
out the  imposition  of  any  costs.  In  Knowlman  v.  Bluett,'"  the 
judge  at  the  trial  went  so  far  as  to  'amend  the  declaration  by  in- 
creasing the  demand  from  600Z.  to  750/.,  and  the  court  above  held 


1  Hill  V.  Salt,  2  C.  &  M.  420. 

""  Guest  V.  Elwes,  5  A-.  &  E.  148  ;  2  N.  &  P.  230,  S.  C. 

^  Moilliet  V.  Powell,  6  C.  &  P.  233,  per  Alderson,  B. ;  Perry  v.  Fisher,  Sp. 
Ass.  for  Surrey,  184G,  per  Lil.  Denman,  MS. 

*  Beckett  v.  Button,  7  ]\I.  &  W.  157  ;  8  Dowl.  865,  B.  C. 

^  Beckett  v.  Button,  7  M.  &  W.  158. 

«  Richardson  r.  Willis,  42  L.  J.,  Ex.  15  ;  12  Cox,  298,  S.  C. 

'  Noble  V.  Chapman,  14  C.  B.  400.     See  also  Hunter  v.  Emmanuel,  15  Com. 
B.  290,  where  the  true  amount  recovered  was  inserted  in  the  declaration. 

8  15  Com.  B.  477.-  '  Id.  145. 

*"  43  L.  .T.,  Ex.  29  ;  9  Law  Rep.,  Ex.  1,  S.  C.     See  Watkins  v.  Morgan,  6  C. 
&  P.  661. 

(3114) 


CHAP.  1.]  AMENDMENTS  REFUSED  UNDER  OLD  LAW.  249 

that  he  was  quite  justified  in  so  doing.  Again,  where  an  action  had 
been  brought  against  the  clerk  of  a  local  board  of  health,  the  court 
allowed  the  proceedings  to  be  amended  by  substituting  the  board  as 
defendants,  instead  of  the  clerk;'  and  a  similar  amendment  has 
been  sanctioned,  where  the  board  had  sued  in  the  name  of  their 
clerk  in  lieu  of  their  own  name.^ 


§  238.  The  cases  in  which  amendments  have  been  refused  under  ?  181 
the  old  law  will  not  detain  us  long,  and  the  more  so  as  tbey  furnish 
no  safe  guide  in  interpreting  the  njore  liberal  language  of  the  new 
rules.  Indeed,  it  is  clear  that  very  many  of  the  decisions  are  no 
longer  law.  Not  the  least  important  case  which  has  been  deter- 
mined on  this  point  is  that  of  Wilkin  r.  Reed.^  There  the  declara- 
tion alleged,  that  the  defendant  had  fraudulently  represented  to  the 
plaintiff  that  the  reason  why  he  had  dismissed  a  clerk,  whom  the 
plaintiff  was  about  to  take  into  his  service,  was  the  decrease  in  his 
business,  and  that  the  defendant  had  recommended  the  plaintiff  to 
try  the  clerk,  and  had  knowingly  suppressed  the  fact  that  he  had 
been  dismissed  on  account  of  dishonesty.  At  the  trial  it  appeared 
in  evidence,  that  the  plaintift  had  asked  the  defendant  the  cause  of 
the  clerk's  dismissal,  and  had  been  told  in  reply  that  it  was  in 
consequence  of  the  defendant's  business  having  fallen  off;  that  this 
answer  was  true;  but  that  the  clerk  had  been  guilty  of  embezzle- 
ment while  in  the  defendant's  employ,  and  that  the  defendant, 
having  been  asked  no  questions  respecting  the  clerk's  honesty,  had 
not  communicated  that  fact  to  the  plaintiff.  On  thit  evidence  the 
plaintiff's  counsel  applied  to  amend  the  declaration,  by  striking  out 
the  allegation,  that  the  defendant  had  fraudulently  misrepresented 
the  reason  of  dismissal,  and  by  substituting  for  it  an  averment, 
that  the  defendant  had  fraudulently  suppressed  the  fact  that  the 
clerk  had  been  guilty  of  dishonesty.  Mr.  Justice  Maule,  however, 
who  tried  the  cause,  refused  to  allow  the  amendment,  on  the  ground 
that  the  real  question  in  controversy  was  not  whether  the  clerk  had 


'  Ld.  Bolinbroke  v.  Townsenu,  8  Law  Rep.  C.  P.  645. 
^  Mills  V.  Scott,  8  Law  Rep.,  Q.  B.  496;  42  L.  J.,  Q.  B.  2.34,  S.  C. 
'  23  L.  J.,  C.  P.  193;  15  Com.  B.  192,  S.  C.     See,  also,  Lucas  v.  Tarleton,  27 
L.  J.,  Ex.  246. 

(3115) 


250  AMENDMENTS  REFUSED  UNDER  OLD  LAW.  [pART  II. 

been  dishonest,  or  whether  his  former  master  had  suppressed  the 
fact  of  his  dishonesty,  but  whether  the  real  cause  of  his  dismissal 
had  been  truly  stated.  The  Court  of  Common  Pleas  afterwards 
supported  this  ruling,  and  held,  first,  that  it  is  a  matter,  not  of 
law,  but  of  fact,  what  "  the  real  question  in  controversy  between 
the  parties"  is;  next,  that  this  matter  of  fact  must  bo  determined, 
not  by  the  jury,  but  by  the  judge  on  a  careful  consideration  of  the 
pleadings  and  the  evidence;  and,  lastly,  that  "  the  question  in  con- 
troversy "  is,  in  other  words,  the  question  which  both  parties  really 
intended  to  have  tried,  and  not  any  question  which,  during  the 
course  of  the  trial,  may  for  the  first  time  be  brought  into  contro- 
versy by  one  of  the  litigants.^ 


§  239.  Though  the  mere  impropriety  or  harshness  of  an  action  ^  190 
ought  to  have  no  effect  in  influencing  the  decision  of  the  judge,^ 
the  plaintiff  has  been  refused  an  amendment  where  the  matter 
sought  to  be  expunged  had  been  purposely  and  improperly  intro- 
duced by  him  into  the  declaration,  with  the  view  of  creating  a  pre- 
judice against  the  defendant;  as,  for  instance,  where  a  count  in  libel 
contained  several  averments  and  innuendoes  unfairly  connecting  the 
plaintiff  with  parts  of  the  alleged  libel,  which,  in  fact,  related  to 
other  persons.^  Moreover,  as  the  Rules  for  allowing  amend- 
ments at  Nisi  Prius  are  intended  to  meet  variances  arising  from 
mere  slips  or  accidents,  the  judge  will  be  very  reluctant  to  allow  an 
amendment,  where  the  party  has  intentionally  framed  his  pleading 
in  such  a  manner  as  to  give  rise  to  the  objection.*  Neither  will  a 
judge  amend  the  record,  when  it  turns  out  at  the  trial  that  the 
plaintiff  has  misconceived  his  remedy,  and  when  he  consequently 
seeks  to  convert  the  proceedings  into  an  action  of  a  different 
character.^ 


1  See  Eoles  v.  Davis,  4  H.  &N.  184. 

2  Doe  V.  Edwards,  1  M.  &  Rob.  321,  per  Parke,  B.;  Doe  v.  Leach,  3  M.  & 
Gr.  230.     See  Brennan  v.  Howard,  1  H.  &  N.  138. 

^  Prudhomme  v.  Eraser,  1  M.  &  Rob.  435,  per  Ld.  Denman. 

*  Bowers  v.  Nixon,  2  C.  &  K.  372,  per  Maule,  J.;  Clowes  v.  Hilliard,  L.  R., 
4  Ch.  D.  115,  per  Jessel,  M.  R.  But  see  Whitwill  v.  Scheer,  8  A.  &  E.  301;  3 
N.  &  P.  3!)1,  S.  C,  cited  ante,  ?  234. 

*  Jacobs  V.  Seward,  5  Law  Rep.,  H.  L.  464. 

(3116) 


CHAP.  I.]  AMENDMENTS  REFUSED  UNDER  OLD  LAW.  251 

§  240.  The  court  has  also  refused  to  amend  at  Nisi  Prius,  where  §  193 
it  appeared  likely  that  the  variance  had  prevented  the  defendant 
from  pleading  a  good  bar  to  the  action/  or  where  the  amendment 
proposed  would  in  all  probability  have  caused  the  defendant  either 
to  demur,^  or  to  plead  different  pleas  from  those  on  the  record/  or 
would  have  introduced  an  entirely  new  contract  and  new  breach,* 
or,  perhaps  even,  any  entirely  new  matter.^  Thus,  in  an  action  of 
covenant  by  the  assignee  of  the  reversion  against  the  lessee,  the 
declaration,  in  deducing  title  to  the  plaintiff,  set  out  a  deed,  whereby 
the  premises  were  appointed  to  him.  The  defendant  traversed  the 
appointment,  and  the  deed,  on  its  production,  was  found  to  be 
nugatory  as  an  appointment,  not  being  executed  in  pursuance  of 
the  power.  The  plaintiff  thereupon  sought  to  amend  his  declara- 
tion by  setting  out  the  deed  at  length,  and  by  averring  that  a 
relationship  existed  between  the  parties,  so  as  to  raise  a  covenant 
to  stand  seized  to  uses;  but  the  court  considered  that  the  case  was 
much  too  complicated  for  an  amendment  to  be  made  at  Nisi  Prius. 
If  the  declaration  had  thereby  been  rendered  good,  the  defendant 
might  have  put  on  the  record  different  pleas  from  those  before 
pleaded;  but  if  not,  then  she  might  have  demurred.''  So,  in  an 
action  on  the  case  for  diverting  a  stream  of  water,  to  which  the 
plaintiff  claimed  a  right  as  the  possessor  of  a  mill,  when,  in  fact, 
he  was  entitled  to  it  as  the  owner  of  the  adjoining  lands,  the  court 
considered  that  the  declaration  ought  not  to  be  amended,  as  the 
defendant  had  traversed  the  plaintiff's  right  in  respect  of  the  mill, 
and  might  have  pleaded  differently  had  the  declaration  claimed  the 
right  in  respect  to  the  land.^ 

*  Ivey  V.  Young,  1  M.  &  Rob.  545,  per  Alderson,  B. 

2  Evans  v.  Powis,  1  Ex.  E.  601;  Bury  v.  Blogg,  12  Q.  B.  877;  Martyn  v.  Wil- 
liams, 26  L.  J.,  Ex.  117;  1  H.  &  N.  817,  S.  C. 

^  Perry  v.  Watts,  3  M.  &  Gr.  775,  explained  in  Gurford  v.  Bajdcy,  id.  784, 
785;  Frankum  v.  Ld.  Falmouth   6  C.  &  P.  529;  2  A.  &  E.  452,  S.  C. 

*  Brashier  v.  Jackson,  6  M.  &  W.  549;  8  Dowl.  784,  S.  C;  Boucher  v.  Mur- 
ray, 6  Q.  B.  362;  Richards  v.  Bluck,  6  Dowl.  &  L.  325;  6  Com.  B.  437,  S.  C; 
Moncrieff  v.  Reade,  2  C.  &  Kir.  705. 

*  David  V.  Preece,  5  Q.  B.  440.  See  Gull  v.  Lindsay,  4  Ex.  R.  45;  and  Ad- 
dington  v.  Magan,  10  Com.  B.  576. 

•*  Perry  t\  Watts,  3  M.  &  Gr.  775,  explained  by  Maule,  J.,  in  Gurford  v. 
Bayley,  id.  784,  785. 

^  Frankum  v.  Ld.  Falmouth,  6  C.  &  P.  529;  2  A.  &  E.  452;  4  N.  &  M.  330, 
S.  C. 

(3117) 


252  ADDING  PLEAS  AT  TRIAL.  [PART  II. 

§  241.  Independent  of  actual  decisions  little  doubt  can  be  now  §  182 
entertained  that  the  judge  may  allow  a  plea  to  be  added  at  the  trial, 
whenever  it  is  necessary  for  the  purpose  of  placing  on  the  record  the 
real  question  in  dispute.'  It  often  happens,  as  was  once  observed 
by  Mr.  Justice  Maule,  that  in  consequence  either  of  imperfect  in- 
structions given  to  the  pleader,  or  of  ignorance,  or  of  oversight,  the 
substantial  point  intended  by  the  parties  to  be  tried  is  not  raised  by 
the  pleadings; "  and  when  this  occurs  it  would  be  obviously  unjust 
to  refuse  an  amendment.  It  would  seem,  however,  not  to  be  im- 
perative on  the  court  to  allow  a  plea  to  be  substituted  after  issue 
joined,  even  though  the  application  be  made  prior  to  the  trial,  and 
though  it  be  supported  by  an  affidavit  that  the  real  question  in  con- 
troversy between  the  parties  can  only  be  raised  on  the  record  by  the 
introduction  of  the  proposed  plea.^  The  case  in  which  this  point 
was  ruled  was  an  action  for  money  lent,  to  which  the  defendant  had 
pleaded  that  he  was  "never  indebted."  After  issue  joined  he 
applied  to  the  court  for  leave  to  substitute  a  plea,  which  set  up  as 
a  deience  that  the  loan  was  contracted  for  an  illegal  purpose,  and  he 
swore  that  the  real  point  in  dispute  was  whether  the  plaintiff  was 
debarred  fi'om  recovering  on  the  ground  of  the  illegality.  In  support 
of  the  motion  the  defendant  contended  that  he  was  entitled  as  of 
right  to  the  rule  as  prayed,  for  the  Act  then  in  force  *  expressly 
stated  that  all  amendments  necessary  for  determining  the  real 
question  in  controversy  ^' shall  be  so  made."  Notwithstanding  this 
argument  the  rule  was  refused. 

§  242.  It  remains  to  notice  a  few  practical  points  which  have  been  §  197 
decided  respecting  the  operation  of  the  earlier  Statutes.  And,  first, 
it  has  been  held  that  an  amendment  at  Nisi  Prius  must  be  made,  if  at 
all,  during  the  trial  and  before  the  verdict;^  unless,  indeed,  the 
opposite  party  waives  his  right  to  enforce  this  amount  of  strictness, 
in  which  case  it  will  suffice  if  the  amendment  be  made  within  the  time 
allowed  for  moving,  provided  it  ultimately  agrees  with  the  judge's 


1  Mitchell  V.  Crassweller,  13  Com.  B.  237. 

2  Wilkin  V.  Reed,  23  L.  J.,  C.  P.  195,  197;  15  Com.  B.  205,  S.  C. 

3  Kitchie  v.  Van  Gelder,  9  Ex.  R.  762. 
*  15  &  16  v.,  c.  76,  I  222. 

^  Brasliier  v.  Jackson,  6  M.  &  W.  549;  8  Dowl.  784,  S.  C;  Doe  v.  Long,  9  C. 
&  P.  777,  per  Coleridge,  J. 

(3118) 


CHAP.  I.]  COSTS  OP  AMENDMENTS.  253 

note  ;  ^  secondly,  it  must  be  allowed  by  the  presiding  judge,  who,  it 
seems,  may  be  the  sheriff  or  his  officer; "  thirdly,  when,  in  consequence 
of  an  amendment  being  allowed  in  a  declaration,  some  alteration 
becomes  necessary  in  the  plea,  the  court  will  direct  this  also  to  be 
made,  should  the  counsel  for  the  defendant  decline  to  interfere  or 
to  amend  the  pleadings  himself  ;  ^  and,  fourthly,  the  court  will  not 
control  the  discretion  of  the  judge  either  in  refusing*  or  allowing'^ 
an  amendment  to  be  made,  imless  upon  clear  proof  that  he  was 
wrong,  or,  at  least,  unless  it  be  shown,  by  affidavit,  that  the  defen- 
dant has  been  prejudiced  by  the  amendment.  In  all  these  cases, 
if  both  parties  consent,  a  larger  power  may  be  exercised,  either  by 
the  judge  at  Nisi  Prius,  by  the  person  substituted  in  his  stead,  or 
by  the  court  above. ^ 

§  243.  With  respect  to  costs,  it  is  difficult  to  lay  down  any  dis-  g  19,^ 
tinct  rule,  as  each  case  must,  in  a  great  degree,  depend  upon  its 
own  particular  circumstances  ;  still  it  may  be  advanced  as  a  safe 
proposition,  that  the  court  will  not  allow  any  additional  expense  to 
be  thrown  upon  the  opposite  party  by  reason  of  any  amendment.' 
Thus,  if  the  defendant  has  put  pleas  on  the  record,  the  proof  of 
which  will  be  rendered  unnecessary  by  the  alteration  proposed,  or 
has  summoned  witnesses,  whom  it  will  become  needless  to  call,  or 
has  otherwise  been  at  any  bona  fide  expense  in  preparing  to  dis- 
prove the  original  allegations,  the  plaintiff  will  be  permitted  to 
amend  on  payment  of  the  costs  occasioned  by  his  error  ;  and  if  it 
appear  probable  that  the  defendant,  in  consequence  of  the  amend- 
ment, will  require  to  alter  his  pleas,  or  to  summon  other  witnesses, 
the  trial  will  at  least  be  postponed,  and   the  plaintiff  be  obliged  to 

^  Jones  V.  Hutchinson,  10  Com.  B.  515. 

2  Hill  V.  Salt,  2  C.  &  M.  420  ;  4  Tyr.  271,  S.  C.     See  30  &  31  V.,  c.  142,  |  6. 

^  Perry  v.  Fisher,  Sp.  Ass.  Surrey,  1846,  per  Lcl.  Denman,  IMS. 

*  Doe  V.  Errington,  1  A.  &  E.  750  ;  3  N.  &  M.  646  ;  1  M.  &  Rob.  344,  n., 
S.  C.  ;  Jenkins  i\  Phillips,  9  C.  &  P.  768,  per  Coleridge,  J.  ;  Whitwill  v. 
Scheer,  8  A.  &  E.  309,  per  Patteson,  J.  ;  Holden  v,  Ballaatyne,  29  L.  J.,  Q.  B. 
H8.  See  Lucas  ('.  Beale,  10  Com.  B.  739  J  Brennan  v.  Howard,  1  H.  «&  N. 
138;  25  L.  J.,  Ex.  290,  S.  C. 

^  Sainshnry  v.  Matthews,  4  M.  &  W.  347,  per  Ld.  Abinger. 

8  Parry  v.  Fairhurst,  2  C.  M.  &  E.  190;  5  Tyr.  685,  S.  C,  noticed  by 
Patteson.  J.,  in  Guest  v.  Elwes,  5  A.  &  E.  126  ;  Roberts  v.  Snell,  1  M.  &  Gr. 
577  ;  Brashier  v.  Jackson,  6  M.  &  W.  558. 

'  Smith  V.  Brandram,  2  M.  &  Gr.  250,  per  Tindal,  C.  J 

(3119) 


254   EXTENT  OF  APPLICATION  OF  RULES  AS  TO  AMENDMENTS.    [PART  II. 

pay  the  costs  of  the  postponement.  In  cases  where  jthe  variance 
cannot  have  misled  the  opposite  party,  the  amendment  will  be 
allowed  without  the  payment  of  any  costs.' 


§  244.  Although  the  judge  at  Nisi  Prius  has  a  discretionary  g  199 
power  of  awarding  or  refusing  costs  in  the  event  of  an  amendment, 
the  court  will  take  care  that  no  injustice  is  done  by  his  accidentally 
omitting  to  give  directions  on  the  subject  ;  and,  therefore,  when  an 
order  has  been  obtained  by  the  plaintiff,  enabling  him  to  withdraw 
the  record  and  amend  the  declaration,  but  no  mention  was  made 
respecting  the  costs  ;  the  court  held  that,  as  the  variance  had  been 
corrected  for  the  benefit  of  the  plaintiff,  he  was  bound  to  liquidate 
the  defendant's  costs  of  the  day.^ 

§  245.  It  has  already  been  stated'  that  the  Rules  respecting 
Amendments,  as  set  out  in  §  225, — unlike  many  of  the  Rules  of 
18S3, — "  apply  to  all  civil  proceedings  on  the  Crown  side  of  the 
Queen's  Bench  Division,  including  mandamus  and  prohibition,  and 
also  to  quo  warranto,  and  to  all  proceedings  on  the  Revenue  side  of 
the  said  Division."  *  They  further  apply  to  the  High  Court  exercising 
jurisdiction  in  Bankruptcy,  which  now  forms  part  of  the  Supreme 
Court,^  and  to  such  of  the  County  Courts  as  have  bankruptcy 
jurisdiction.*^  They  are  also  applicable  to  Admiralty  actions,  and  to 
Probate  actions  ;  but  they  do  not  affect  the  procedure  or  practice, 
either  in  criminal  proceedings,  or  in  proceedings  for  Divorce  or 
other  Matrimonial  Causes.^  In  the  Divorce  Court  the  only  material 
rule  respecting  the  amendment  of  pleadings  was  promulgated  in 
1875,  and  is  thus  expressed  :  — "  Either  of  the  parties  before  the 
court  desiring  to  alter  or  amend  a  pleading  may  apply  by  summons 
to  one  of  the  registrars  for  an  order  for  that  purpose."  * 

§  246.   Large  powers  of  amendment  are  granted  to  the  County    ?  200 


'  St.  Losky  I'.  Green,  30  L.  J.,  C.  P.  19  ;  9  Com.  B.,  N.  S.  370,  S.  C. 
2  Skinner  v.  Lond.  &  Brigh.  Ry.  Co.,  1  L.  M.  &  P.  189  ;  4  Ex.  R.  885,  S.  C. 
»  Ante,  |22lA.  *  Ord.  Ixviii.  R.  2. 

»  46  &  47  v.,  c.  52,  §  93.  «  46  &  47  V.,  c.  52,  §  100. 

'  Ord.  Ixviii.  R.  1. 

8  Rules  in  Div.  &  Mat.  Causes,  R.  187.     See  also  RR.  35—37. 

(3120) 


CHAP.  I.]        AMENDMENTS  IN  COUNTY  CTS. — IN  CIVIL  BILL  CTS.  255 

Courts,  when  errors  have  been  committed  with  respect  to  the  names, 
descriptions,  numbers,  or  representative  characters  of  the  plaintiffs 
and  defendants  ;^  and,  in  addition  to  these  powers,  it  is  provided  by 
§  57  of  the  Act  of  19  &  20  V.,  c.  108,  that  "the  judge  of  a  County 
Court  may  at  all  times  amend  all  defects  and  errors  in  any  pro- 
ceeding in  such  court,  whether  there  is  anything  in  writing  to 
amend  by  or  not,  and  whether  the  defect  or  error  be  that  of  the 
party  applying  to  amend  or  not ;  and  all  such  amendments  may  be 
made  with  or  without  costs,  and  upon  such  terms  as  to  the  judge 
may  seem  fit ;  and  all  such  amendments  as  may  be  necessary  for 
the  purpose  of  determining  in  the  existing  suit  the  real  question  in 
controversy  between  the  parties  shall  be  so  made,  if  duly  applied 
for."  Still,  if  the  particulars  of  the  plaintifP's  claim  do  not  disclose 
a  case  within  the  jurisdiction  of  County  Court,  the  judge  has 
no  power  to  amend  them,  so  as  to  turn  the  complaint  into  one  over 
which  he  has  cognisance.^ 

§  247.  The  Civil  Bill  Courts  in  Ireland  are  intruste(f  with  §  201 
similar  powers  of  making  amendments  by  the  Act  of  14  &  15  V., 
c.  57,  which  in  §  106  enacts,  that  "  it  shall  and  may  be  lawful  for 
the  several  assistant  barristers,  and  judges  on  appeal,  and  they  are 
hereby  respectively  empowered,  in  all  cases,  to  amend  all  variances 
between  the  statement  of  the  cause  of  action  in  any  civil  bill,  or 
other  process  or  proceeding  in  their  respective  civil  bill  courts,  and 
the  evidence  in  support  of  such  cause  of  action,  and  also  to  amend 
all  variances,  omissions,  and  misdescriptions  in  the  descriptions, 
additions,  and  residence  of  the  parties,  or  any  of  them,  or  other- 
wise howsoever,  of  or  in  any  such  process,  or  between  the  original 
and  any  copy  or  copies  thereof,  provided  such  last-mentioned 
variances,  omissions,  or  misdescriptions  shall  not,  in  the  opinion  of 
the  assistant  barrister,  be  calculated  to  mislead  the  defendant  or 
defendants  therein  ;  and  in  every  case  of  any  misjoinder  of  parties 
or  causes  of  action,  it  shall  and  may  be  lawful  for  every  assistant 
barrister  to  strike  out  of  the  process  the  name  or  names  of  any  one 


^  See  Cy.  Ct.  Rules,  1875,  1876,  Ord.  xvii.,  r.  21.     See  Mills  v.  Scott,  8  Law 
Rep.,  Q.  B.  496,  cited  ante,  §  237. 

''  Hopper  V.  Warburton,  32  L.  J.,  Q.  B.  104,  per  Mellor,  J.,  in  B.  Ct. 

(3121) 


256  AMENDMENTS  IN  CRIMINAL  PROCEEDINGS.  [PAKT  II. 

or  more  plaintiffs  or  defendants,  or  any  count  or  counts  in  such 
process,  by  reason  of  whom  or  which  such  misjoinder  shall  arise, 
and  thereupon  to  proceed  therein  as  to  justice  shall  appertain.'" 


§  248.  The  only  statute  which,  prior  to  the  year  1848,  aiithorised  §  202 
the  amendment  of  any  variances  in  criminal  cases  was  9  G.  4, 
c.  15  ;"  and  that  Act,  which  was  confined  to  variances  appearing 
between  any  matter  in  writing  or  in  print  produced  in  evidence, 
and  the  recital  thereof  upon  the  record,^  merely  applied  to  misde- 
meanors, and  then  only  to  cases  where  the  indictment  or  informa- 
tion was  preferred  before  a  court  of  oyer  and  terminer  and  general 
gaol  delivery.'^  In  1848,  however,  more  liberal  views  being  enter- 
tained by  the  Legislature,  the  provisions  of  that  Act  were  extended 
to  all  offences  whatever;^  and,  in  the  following  year,  similar  powers 

'  Further  powers  of  amendment  are  givin  to  the  Civil  Bill  Cts.,  and  to  the 
"judge  of  assize  on  appeal,"  by  27  &  28  V.,  c.  99,  |  48,  Ir. 

•^  See  ante,  ^  220. 

■^  See .  R.  V.  Cooke,  7  C.  &  P.  559  ;  R.  v.  Hewins,  9  C.  &  P.  786  ;  R.  v. 
Christian,  C.  &  Marsh.  388. 

*  This  Act, — after  reciting  that  "great  expense  is  often  incurred,  and  delay 
or  failure  of  justice  takes  place  at  trials,  by  reason  of  variances  between 
writings  produced  in  evidence  and  the  recital  or  setting  forth  thereof  upon 
the  record  on  which  the  trial  is  had,  in  matters  not  material  to  the  meriis  of 
the  case,  and  such  record  cannot  now,  in  any  case,  be  amended  at  the  trial, 
and  in  some  cases  cannot  be  amended  at  any  time:" — for  remedy  thereof, 
enacts,  that  "it  shall  be  lawful  for  every  court  of  oyer  and  terminer,  and  general 
gaol  delivery  in  England,  Wales,  Berwick-upon-Tweed,  and  Ireland,  if  such 
coiirt  shall  see  fit  so  to  do,  to  cause  the  record  on  which  any  trial  may  be  pending 
before  any  such  court  in  any  indictment  or  information  for  any  misdemeanor, 
when  any  variance  shall  appear  between  any  matter  in  writing  or  in  print 
produced  in  evidence,  and  the  recital  or  setting  forth  thereof  upon  the  record 
whereon  the  trial  is  pending,  to  be  forthwith  amended  in  such  particular  by 
some  oflScer  of  the  court,  on  payment  of  such  costs  (if  any),  to  the  other  party, 
as  such  court  shall  think  reasonable  ;  and  thereupon  the  trial  shall  proceed  as 
if  no  such  variance  had  appeared  ;  and  thereupon  the  papers,  ^olls,  and  other 
records  of  the  court  shall  be  amended  accordingly." 

^  11  &  12  v.,  c.  46,  I  4,  which,— following  the  language  of  the  Act  of  G.  4,  as 
cited  in  last  note, — enacts,  "that  it  shall  and  maybe  lawful  for  any  court 
of  oyer  and  terminer  and  general  gaol  delivery,  if  such  court  shall  see  fit  so  to 
do,  to  cause  the  indictment  or  information  for  any  offence  whatever,  when  any 
variance  or  variances  shall  appear  between  any  matter  in  writing  or  in  print 
produced  in  evidence,  and  the  recital  or  setting  forth  thereof  in  the  indictment 
or  inf  irmation  whereon  the  trial  is  pending,  to  be  forthwith  amended  in  such 
particular  or  particulars  by  some  officer  of  the  court,  and  after  such  amend- 

(3122) 


CHAP.  I.]         LORD  Campbell's  criminal  act  of  1851.  257 

of  amendment  were  conferred  on  all  courts  of  general  or  quarter 
sessions  in  England.'  These  alterations  in  the  law  were  no  doubt 
steps  in  the  right  direction,  but  still  they  were  found  to  afford  a 
very  ineflPectual  remedy  for  the  evil  complained  of;  and  conse- 
quently, in  1851,  the  interposition  of  Parliament  was  again  invoked 
by  Lord  Campbell,  and  an  Act  was  at  length  passed,"  which  has 
placed  criminal  proceedings  ^  on  nearly  the  same  footing  with  civil 
actions,  in  respect  to  the  amendment  of  variances  between  the  record 
and  the  proof. 

§  249.  After  reciting  that  "  a  failure  of  justice  often  takes  place  ^  203 
on  the  trial  of  persons  charged  with  felony  and  misdemeanor,  by 
reason  of  variances  between  the  statement  in  the  indictment  on 
which  the  trial  is  had,  and  the  proof  of  names,  dates,  matters,  and 
circumstances  therein  mentioned,  not  material  to  the  merits  of  the 
case,  and  by  the  mis-statement  whereof  the  person  on  tiial  cannot 
have  been  prejudiced  in  his  defence;  " — the  statute  proceeds  to 
enact,  in  §  1,  that  "  whenever,  on  the  trial  of  any  indictment  for 
any  felony  or  misdemeanor,  there  shall  appear  to  be  any  variance 
between  the  statement  in  such  indictment  and  the  evidence  offered 
in  proof  thereof,  in  the  name  of  any  county,  riding,  division,  city, 
borough,  town  corporate,  parish,  townshij),  or  place  mentioned  or 
described  in  any  such  indictment, — or  in  the  name  or  description 
of  any  person  or  persons,  or  body  politic  or  corporate,  therein  stated 
or  alleged  to  be  the  owner  or  owners  of  any  property,  real  or  per- 
sonal, which  shall  form  the  subject  of  any  offence  charged  therein, 
— or  in  the  name  or  description  of  any  person  or  persons,  body 
politic  or  corporate,  therein  stated  or  alleged  to  be  injured  or 
damaged  or  intended  to  be  injured  or  damaged  by  the  commission 
of  such  offence, — or  in  the  Christian  name  or  surname,  or  both 
Christian  name  and  surname,  or  other  description  whatsoever,  of 


ment  the  trial  shall  proceed  in  the  same  manner  in  all  respects,  both  with 
regard  to  the  liability  of  witnesses  to  be  indicted  for  perjury  and  otherwise, 
as  if  no  such  A^ariance  or  variances  had  appeared." 

^  12  &  13  v.,  c.  45,  I  10.     Cts.  of  Quart.  Sess.  in  Irel.  have  large  jwwers  of 
amendment  by  27  &  28  V.,  c.  99,  Ir.  "  14  &  15  V.,  c.  100. 

*  The  Inferior  Courts   in  Scotland  have   now,  under  "The  Summary  Pro- 
cedure Act,  1864,"  27  &  28  V.,  c.  53,  ^5, large  powers  of  amending  complaints 
before  them  with  respect  to  variances  and  other  defects. 
■   17  LAW  OF  EVID. — V.  I.  (3123) 


258  LORD  Campbell's  criminal  act  of  1851.         [part  ii. 

any  person  or  persons  whomsoever  therein  named  or  described, — 
or  in  the  name  or  descriptio)i,  of  any  matter  or  thing  tchatsoever 
herein  named  or  described, — or  in  the  ownership  of  any  property 
named  or  described  therein, — it  shall  and  may  be  lawful  for  the 
court  before  which  the  trial  shall  be  had,  if  it  shall  consider  such 
variance  not  material  to  the  merits  of  the  case,  and  that  the  defen- 
dant cannot  be  prejudiced  thereby  in  his  defence  on  such  merits,  to 
order  such  indictment  to  be  amended,  according  to  the  proof,  by 
i3ome  officer  of  the  court  or  other  person,  both  in  that  part  of  the 
indictment  where  such  variance  occurs,  and  in  every  other  part  of 
the  indictment  which  it  may  become  necessary  to  amend,  on  such 
terms  as  to  postponing  the  trial  to  be  had  before  the  same  or 
another  jury,  as  such  court  shall  think  reasonable;  and  after  any 
such  amendment  the  trial  shall  proceed,  whenever  the  same  shall 
be  proceeded  with,  in  the  same  manner  in  all  respects,  and  with 
the  same  consequences,  both  with  respect  to  the  liability  of  wit- 
nesses to  be  indicted  for  perjury  and  otherwise,  as  if  no  such 
variance  had  occurred;  and  in  case  such  trial  shall  be  had  at  Nisi 
Prius,  the  order  for  the  amendment  shall  be  indorsed  on  the  postea, 
and  returned  together  with  the  record,  and  thereupon  such  papers, 
rolls,  or  other  records  of  the  court  from  which  such  record  issued, 
as  it  may  be  necessary  to  amend,  shall  be  amended  accordingly  by 
the  proper  officer;  and  in  all  other  cases  the  order  for  the  amend- 
ment shall  either  be  indorsed  on  the  indictment,  or  shall  be 
engrossed  on  parchment,  and  filed,  together  with  the  indictment, 
among  the  records  of  the  court." 


§  250.  The  Act  then  contains  a  proviso,  "  that,  in  all  such  cases  »  204 
where  the  trial  shall  be  so  postponed  as  aforesaid,  it  shall  be  lawful 
for  such  court  to  respite  the  recognisances  of  the  prosecutor  and 
witnesses,  and  of  the  defendant,  and  his  surety  or  sureties,  if  any, 
accordingly;  in  which  case  the  prosecutor  and  witnesses  shall  be 
bound  to  attend  to  prosecute  and  give  evidence  respectively,  and 
the  defendant  shall  be  bound  to  attend  to  be  tried,  at  the  time  and 
place  to  which  such  trial  shall  be  postponed,  without  entering  into 
any  fresh  recognisances  for  that  purpose,  in  such  and  the  same 
manner  as  if  they  were  originally  bound  by  their  recognisances  to 
appear  and  prosecute  or  give   evidence  at  the  time  and  place  to 

(3124) 


CHAP.  1.]  AMENDMENTS  IN    CRIMINAL    PROCEEDINGS.  259 

with  such  trial  shall  have  been  so  postponed  ;"  and  a  further 
proviso  directs,  "that,  where  any  such  trial  shall  be  to  be  had 
before  another  jury,  the  Crown  and  the  defendant  shall  respectively 
be  entitled  to  the  same  challenges,  as  they  were  respectively  entitled 
to  before  the  first  jury  was  sworn." 


§  251.  The  second  section  enacts,  ex  majori  cautela,  that  "  every  ^  205 
verdict  and  judgment,  which  shall  be  given  after  the  making  of  any 
amendment  under  the  provisions  of  this  Act,  shall  be  of  the  same 
force  and  effect  in  all  respects,  as  if  the  indictment  had  originally 
been  in  the  same  form  in  wbich  it  was  after  such  amendment  was 
made;"  while  §  3  provides,  that,  "if  it  shall  become  necessary  at 
any  time  for  any  purpose  whatsoever  to  draw  up  a  formal  record, 
in  any  case  where  any  amendment  shall  have  been  made  under  the 
provisions  of  this  Act,  such  record  shall  be  drawn  up  in  the  form 
in  which  the  indictment  was  after  such  amendment  was  made, 
without  taking  any  notice  of  the  fact  of  such  amendment  having 
been  made."  ' 


§  252.  Under  these  salutary  provisions  it  has  been  held,  that  an  ^  206 
indictment  charging  the  defendant  with  having  obstructed  a  footway 
may  be  amended,  when  one  of  the  termini  of  the  way  has  been 
misdescribed,  provided  the  variance  be  not  calculated  to  prejudice 
the  defence;^ — that  an  amendment  may  be  made  when  the  owner- 
ship of  stolen  property,^  or  the  stolen  property  itself,*  is  wrongly 
described; — that  the  misnomer  of  a  party  injured  may  be  rectified;* 
— that  the  misdescription  of  any  persons  described  in  the  indictment 
may  be  set  right;  "^ — that  an  erroneous  date  ascribed  to  the  passing 
of  a  statute  may  be  struck  out  ;' — that  where  an  indictment  for 
perjury  alleged  that  the  crime  was  committed  on  atrial  for  burning 
a  barn,  and  it  was  proved  that  the  actual  charge  was  one  of  firing  a 


^  See  further  as  to  the  amendment  of  formal  defects  in  indictment,  |  25  of 
the  Act,  cited  post,  |  2  80,  n.\    ,  ^  E.  v.  Sturge,  3  E.  &  B.  734. 

^  R.  V.  Vincent,  2  Den.  464;  R.  v.  Fullarton,  6  Cox,  194. 

*  R.  V.  Gumble,  42  L.  J.,  M.  C.  7  ;  2  Law  Rep.,  C.  C.  1  ;  12  Cox,   248,  S.   C. 

5  R.  V.  Welton,  9  Cox,  297. 

«  R.  V.  Western,  37  L.  J.,  M.  C.  81  ;  1  Law  Rep.,   C.  C.   122;    11  Cox,  93, 
S.  C.  '  R.  V.  Westley,  Bell,  C.  C.  193. 

(3125) 


260  AMENDMENTS  IN  CRIMINAL   PROCEEDINGS.  [PART  11. 

stack,  the  court  had  power  to  amend  the  variance; ' — and  that  it  is 
not  too  late  to  apply  for  an  amendment,  even  though  the  counsel 
for  the  prisoner  may  have  addressed  the  jury.^  This  last  case  is 
important,  as  it  overrules  a  mischievous  decision  by  "Williams,  J., 
to  the  effect  that  an  application  to  amend  must  at  latest  be  made 
before  the  case  for  the  prosecution  is  closed.^  It  seems  that,  in 
general,  the  court  will  not  amend  an  indictment  after  plea,  if,  in 
its  amended  form,  it  would  be  open  to  a  demurrer.*  Neither  can 
an  amendment  be  made  after  verdict.^  Nor  will  the  coiirt  amend 
an  amendment,  or  restore  an  indictment,  once  amended,  to  its 
original  form/'  Where  a  prisoner  was  indicted  for  a  statutable 
forgery,  but  the  evidence  only  sustained  a  forgery  at  common  law, 
Mr.  Justice  Hill  declined  to  amend  the  indictment  by  striking  out 
the  word  "  feloniously,"  and  thus  converting  a  charge  of  felony  into 
one  of  misdemeanor.' 


§  253.  Although  Lord  Campbell's  Act  has  now  been  in  operation  ^  907 
for  thirty-three  years,  the  decisions  under  it  scarcely  justify  the 
expression  of  any  confident  opinion  as  to  the  amount  of  liberality 
with  which  its  language  will  eventually  be  construed  by  the 
courts.  The  narrow  rules  of  interpretation,  which  have  been 
promulgated  by  one  or  two  of  the  judges  with  reference  to  the 
prior  statute,  9  G.  4,  c.  15,^  are  calculated  to  excite  a  reasonable 
fear  lest  an  equally  strict  construction  should  be  applied  to  the 
amendment  cLauses  of  this  act ;  but,  on  the  other  hand,  it  cannot 
be  denied  that  the  subject  is  now  far  better  understood  than  it 
formerly  was,  and  that  even  judges  are  beginning  to   discover  that 


1  R.  V.  Neville,  6  Cox,  69,  per  Williams,  J.;  R.  v.  Tymms,  11  Cox,  G45,  per 
Lush,  J. 

^  R.  V.  FuUarton,  6  Cox,  194,  per  Lefroy,  C.  J.,  and  Monahan,  C.  J. 
=*  R.  V.  Rymes,  3  C.  &  Kir.  326. 

*  R.  V.  Lallement,  6  Cox,  204.  Sed  qu.  The  case,  as  reported,  is  not 
satisfactory. 

^  R.  V.  Larkin,  G  Cox,  377  ;  R.  v.  Frost,  Pearce  &  D.  474  ;  24  L.  J.,  M.  C. 
116,  S.  C. 

8  R.  V.  Barnes,  1  Law  Rep.,  C.  C.  45;  35  L.  J.,  M.  C.  204  ;  R.  v.  Pritchard, 
30  L.  J.,  M.  C.  169;  L.  &  Cave,  34,  S.  C;  R.  r.  Webster,  L.  &  Cave,  77. 

^  R.  V.  Wright,  2  Post.  &  Pin.  320. 

*  R.  V.  Cooke,  7  C.  &  P.  556,  per  Patteson,  J. ;  R.  v.  Hewins,  9  C.  &  P.  786, 
per  Coleridge,  J. 

(3126) 


CHAP.  I.]       DREAD  OF  AMENDING  INDICTMENTS  ERRONEOUS.  261 

substantial  justice  is  of  more  real  importance  than  mere  technical 
precision.  Wise  men  should  ever  bear  in  mind,  that  the  object 
of  the  Acts  which  authorise  amendments  in  criminal  proceedings, 
is  to  render  punishment  more  certain,  by  neutralising  the  effect  of 
trivial  variances,  which  have  constantly  protected  the  wrong  doer. 
So  long  as  the  least  rational  doubt  exists  respecting  the  guilt  of  a 
prisoner,  it  is  only  fair  that  the  ample  shield  of  justice  should 
screen  him  from  injury  ;  that  juries  should  weigh  with  jealousy 
the  evidence  against  him  ;  and  that  judges  should  see  most  clearly 
that  the  act,  with  which  he  is  charged,  is  an  offence  against  the 
law.  But  when  courts  of  justice  go  further  than  this,  and  permit 
the  law  to  be  defeated  by  technical  eiTors,  which  cannot  by  pos- 
sibility mislead  a  defendant,  and  which  have  nothing  to  do  with  the 
substantial  merits  of  the  case,  they  take  the  most  effectual  means  of 
rendering  the  administration  of  the  criminal  law  a  fitting  subject  for 
contempt  and  ridicule.  In  civil  causes,  the  Rules  authorising  amend- 
ments receive  a  liberal  construction,  and  properly  so.'  Why,  then, 
should  an  absurdly  strict  construction  be  applied  in  criminal  courts  ? 
The  statutes  themselves  warrant  no  such  distinction,  and  to  intro- 
duce into  the  interpretation  of  them  the  old  doctrine  "  strictissimi 
juris,"  is  to  misunderstand  and  misapply  the  meaning  of  that 
doctrine,  and  to  make  the  commandments  of  the  Legislature  of  none 
effect  through  your  traditions. 


§  254.  Having  now  drawn  attention  to  the  Rules  and  the  Acts  §  208 
which  authorise  amendments  to  be  made,  whether  in  civil  or  criminal 
proceedings,  and  having  also  examined  the  leading  cases  that  have 
been  decided  under  them,  it  will  be  expedient  briefly  to  notice 
some  general  rules  which  regulate  the  law  of  variance;  because, 
although  a  discrepancy  between  the  allegation  and  the  proof  is 
not,    as   formerly,    fatal,   provided    that  it  be  not  material  to  the 


1  The  language  of  Ld.  Mansfield  in  Bristow  v.  Wright,  2  Doug.  GGfi,  should 
never  be  forgotten.  "  I  am  very  free  to  own,"  said  his  Lordship,  "that  the 
strong  bias  of  my  mind  has  always  leaned  to  prevent  the  manifest  justice  of  a 
cause  from  being  defeated  or  delayed  by  formal  slips,  which  arise  from  the 
inadvertence  of  gentlemen  of  the  profession  ;  because  it  is  extremely  hard  on 
the  party  to  be  turned  round,  and  put  to  expense,  from  mieh  mistakes  of  the 
counsel  or  attorney  he  employs.     It  is  hard,  also,  on  the  prt^ession. ' ' 

(3127) 


262      VARIANCE — SURPLUSAGE  NEED  NOT  BE  PROVED.   [PART  II. 

substantial  merits,  yet  it  may  still  entail  considerable  expense  on 
the  party,  who  is  di'iven  to  apply  for  an  amendment.  It  is  there- 
fore important  to  ascertain,  upon  what  occasions  the  opposite  party 
is  entitled  to  object,  that  the  substance  of  the  issue  has  not  been 
proved. 


§  255.'  The  first  rule  in  connexion  with  this  subject  is,  that  ^  200 
surplusage  need  not  be  proved,  and  the  proof,  if  offered,  should 
be  rejected.  The  term  surplusage  comprehends  whatever  i-nay  be 
stricken  from  the  record  without  destroying  the  right  of  action,  or 
the  charge,  on  the  one  hand,  or  the  defence  on  the  other.  This, 
it  is  true,  is  a  loose,  and  therefore  an  unsatisfactory,  definition  ; 
but  it  is  difficult,  not  to  say  impossible,  to  find  one  more  distinct 
and  practical.  Each  case  must,  in  a  great  measure,  depend  on  its 
own  particular  circumstances,  and  the  best  means  of  ascertaining 
what  will,  or  will  not,  amount  to  surplusage,  is  by  examining  the 
decisions  on  this  subject.  The  case  of  Williamson  v.  Allison,^  is 
a  leading  authority.  That  was  a  declaration  in  tort,  for  breach 
of  a  warranty  that  some  claret  was  in  a  fit  state  to  be  exported  to 
India,  whereas  it  was  at  the  time,  and  the  defendant  tcell  knew 
that  it  was,  in  a  very  unfit  state.  At  the  trial  no  evidence  was 
given  of  the  defendant's  knowledge,  and  the  verdict  being  for 
the  plaintiff,  a  motion  was  made  for  a  new  trial,  on  the  ground 
that  the  scienter,  having  been  alleged,  ought  to  have  been  proved  ; 
but  the  court  were  unanimously  of  opinion  that  the  allegation  of 
the  scienter  was  wholly  unnecessary  and  immaterial,  and  therefore 
required  no  proof.  The  grounds  for  this  decision  are  explained 
with  great  clearness  by  Lord  Ellenborough  in  pronouncing  his 
judgment.  "  If,"  said  his  Lordship,  "  the  whole  averment  re- 
specting the  defendant's  knowledge  of  the  unfitness  of  the  wine 
for  exportation  were  struck  out,  the  declaration  would  still  be 
sufficient  to  entitle  the  plaintiff  to  recover  upon  the  breach  of  the 
warranty  proved.  For,  if  one  man  lull  another  into  security  as 
to  the  goodness  of  a  commodity,  by  giving  him   a  warranty   of  it, 


^  Gr.  Ev.,  §  51,  in  part. 

^  2  East,  446  ;  cited   by   Ld.  Abinger   in   Cornfoot   r.   Fowke,  G  M.  «Sc  W. 
377. 

(3128) 


CHAP.  I.]  INSTANCES    OF  SURPLUSAGE.  263 

it  is  the  same  thing  whether  or  not  the  seller  knew  it  at  the  time 
to  be  unfit  for  sale;  the  warranty  is  the  thing  which  deceives  the 
buyer,  who  relies  on  it,  and  is  thereby  put  off  his  guard.  Then, 
if  the  warranty  be  the  material  averment,  it  is  sufficient  to  prove 
that  broken  to  establish  the  deceit."  Mr.  Justice  Lawrence 
added,  "■  I  take  the  rule  to  be,  that  if  the  whole  of  an  averment 
may  be  struck  out  without  destroying  the  plaintiff's  right  of 
action,  it  is  not  necessary  to  prove  it;  but  otherwise,  if  the  whole 
cannot  be  struck  out  without  getting  rid  of  a  part  essential  to  the 
cause  of  action;  for  then,  although  the  averment  be  more  par- 
ticular than  it  need  have  been,  the  whole  must  be  proved,  or  the 
plaintiff  cannot  recover."' 

§  256."  So,  in  an  action  for  removing  earth  from  the  defendant's  ^  r,,^ 
land,  whereby  the  foundation  of  the  plaintiff's  house  was  injured, 
the  allegation  of  bad  intent  in  the  defendant  need  not  be  proved,  for 
the  cause  of  action  is  perfect,  independent  of  the  intention.^  So, 
in  an  action  for  impounding  cattle  in  an  unfit  pound,  an  averment 
that  the  pound  was  "at  all  times  unfit,  as  the  defendant  well  knew," 
may  be  rejected  as  immaterial,  and  consequently  it  requires  no  proof.* 
Again,  if  a  declaration  discloses  a  state  of  facta  upon  which  an 
action  may  be  maintained,  although  the  defendant  has  not  been 
guilty  of  malice  or  fraud,  the  plaintiff  is  not  bound  to  prove  either, 
notwithstanding  both  be  alleged,  and  he  may  recover  upon  the 
liability  which  the  facts  disclose,  though  both  fraud  and  malice  be 
actually  disproved.^  In  an  action,  too,  against  a  common  carrier 
for  the  loss  of  property  intrusted  to  him,  negligence,  though  averred, 
need  not  be  proved.®  So,  also,  in  trespass,  for  driving  against  the 
plaintiff's  cart,  an  averment  that  he  was  in  the  cart  is  immaterial.^ 


'  2  East,  451,  452.  See,  also,  Jackson  v.  Allaway,  6  M.  &  Gr.  942;  7  Scott, 
N.  R.  875,  S.  C;  Att.-Gen.  v.  Clerc,  12  M.  &  W.  640;  Tempest  v.  Kilner, 
2  Com.  B.  300;  Anderson  v.  Thornton,  8  Ex.  R.  425;  Thorn,  v.  Bigland,  id. 
725;  Southall  v.  Rigg,  and  Forman  v.  Wright,  11  Com.  B.  481. 

^  Gr.  Ev.,  §  64,  as  to  the  first  four  lines. 

3  Panton  v.  Holland,  17  Johns.  92;  Twiss  v.  Baldwin,  9  Conn.  291. 

*  Bignell  v.  Clarke,  5  H.  &  N.  485. 

5  Swinfen  v.  Lord  Chelmsford,  5  H.  &  N.  890,  920,  921. 

«  Richards  v.  Lond.  &  South  Coast  Ry.  Co.,  7  Com.  B.  839.     See  ante,  §  187. 

^  Howard  v.  Peete,  2  Chit.  R.  315. 

(3129) 


264  INSTANCES  OF  SURPLUSAGE.  [PART  II. 

In  like  manner,  where  a  declaration, — after  alleging  that  the  plaintiff 
was  possessed  of  a  pond,  and  the  defendant  was  possessed  of  an 
adjoining  close,  used  as  a  private  road, — averred  that  the  defendant 
wrongfully  cut  in  his  close,  tised  as  a  private  road,  a  certain  large 
sewer,  and  thereby  diverted  the  water  from  the  pond,  the  court  held 
that  the  words  marked  in  italics  were  clearly  immaterial,  and  that 
the  plaintiff  might  recover  damages,  though  it  appeared  that  the 
sewer  was  cut  previously  to  the  construction  of  the  road.  "What," 
said  Chief  Justice  Tindal,  "has  it  to  do  with  the  wrongful  act  of 
the  defendant,  or  the  measure  of  damages  which  the  plaintiff  is 
entitled  to  claim,  whether  the  defendant  used  his  close  as  a  road,  an 
orchard,  or  a  garden?"^ 

§  258.  In  an  action,  too,  by  a  servant  against  his  masters  for  I  211 
the  breach  of  a  contract  of  hiring,  where  the  declaration  charged 
the  defendants  with  having  wrongfully  and  without  reasonable  or 
probable  cause  dismissed  the  plaintifF,  and  the  plea  alleged  that 
they  did  not  ivrongfuUy  and  ivithout  reasonable  or  probable  cause 
dismiss  him,  the  court  held  that  the  fact  of  the  dismissal  was 
alone  put  in  issue.'  So,  where  a  defendant,  while  traversing  in 
terms  the  plaintiff's  declaration,  had  averred  in  his  plea  that  he  did 
not  ivrongfully  maintain  a  weir  at  an  improper  height,  he  was  not 
allowed  to  prove  that  such  maintenance  was  rightful,  for  that  would 
have  been  tantamount  to  giving  matter  of  confession  and  avoidance 
in  evidence  under  a  simple  traverse.*  So,  where  a  girl  of  ten  years 
old,  by  her  prochein  ami,  sued  a  surgeon  in  case,  and  the  declara- 
tion stated  that  she  had  employed  him  to  cure  her,  and  then  claimed 
damages  for  misfeasance,  the  court  held  that  there  was  no  material 
variance  between  the  allegation  and  the  proof,  though  the  defendant 


1  Dukes  V.  Gostling,  1  Bing.  N.  C.  588,  593. 

■^  Powell  V.  Bradbury,  7  Com.  B.  201.  See,  however.  Lush  v.  Eussell,  1  L.  M. 
&  P.  369,  374,  375;  5  Ex.  R.  203,  209,  210,  S.  C,  where  this  case  is  denied  to 
be  law,  and  it  is  laid  down  that  "if  a  traverse,  instead  of  being  in  a  general 
form,  puts  in  issue  an  immaterial  part  in  exprc&s  terms,  that  must  be  disposed 
of  by  the  jury,  and,  generally  speaking,  according  to  the  terms  of  the  issue." 
See  Smith  v.  Lovell,  10  Com.  B.  6,  23,  24;  and  Hortou  v.  M'Murtry,  29  L.  J., 
Ex.  265;  5  H.  &  N.  667,  S.  C. 

"Keller  v.  Blood,  13  Ir.  Law  E.,  N.  S.  19,  per  Ex.  Ch.,  affirming  S.  C. 
reported  11  Ir.  Law  R.,  N.  S.  132. 

(3130) 


CHAP.  I.]  INSTANCES  OF  SURPLUSAGE.  265 

had  traversed  the  statement  that  the  plaintiff  had  employed  him, 
and  it  appeared  that  he  had,  in  reality,  been  sent  for  by  the  mother, 
and  paid  by  the  father,  of  the  child;  for  either  the  fact  of  the  girl 
having  allowed  him  to  operate  was  evidence  that  she  had  employed 
him,  and  that  he  had  accepted  the  employment,  or, — the  substance 
of  the  issue  being,  that  he  was  employed  to  cure  his  patient, — it 
was  immaterial  hy  ichom  he  was  employed,  and  the  statement  that 
he  was  employed  by  the  plaintiff  might  be  struck  out  of  the 
pleadings/ 

§  259.  Again,  if  a  bill  be  accepted  payable  at  a  particular  place,  |  212 
without  stating  it  to  be  payable  there  only,  it  is  no  variance,  in  an 
action  against  the  acceptor,  to  declare  upon  it  as  payable  at  that 
place,  though  such  an  acceptance  is  declared  by  the  Legislature  to 
be,  for  all  intents  and  purposes,  a  general  acceptance;"  for  a  general 
acceptance,  being  an  engagement  to  pay  anywhere,  must  include, 
amongst  others,  the  particular  place  mentioned  in  the  declaration; 
and  it  does  not  lie  in  the  defendant's  mouth  to  say  that  the  bill  was 
not  payable  at  that  place,  when  he  has  himself  referred  the  parties 
there  for  payment.^  So,  in  an  action  on  a  promissory  note,  where 
the  declaration  stated  that  the  defendant  made  it,  "  his  own  proper 
hand  being  thereunto  subscribed,"  but  it  appeared  that  the  nolo 
was,  in  fact,  drawn  by  his  son,  with  his  authority;  Lord  Tenterden 
held  that  this  was  no  variance,  as  the  allegation  respecting  the 
defendant's  handwriting  might  be  rejected  as  surplusage.*  So, 
also,  in  action  by  an  indorsee  against  the  drawer  or  indorser  of  a 


1  Glad  well  v.  Steggall,  5  Bing.  N.  C.  733;  8  Scott,  60,  S.  C. 
Mo  &  46  v.,  c.  61,  I  19. 

*  Blake  v.  Beaumont,  4  M.  &  Gr.  7,  10.  It  will  be  seen  that  this  case 
depends  rather  on  the  doctrine  or  estoppel,  than  on  that  of  variance. 

*  Booth  V.  Grove,  M.  &  M.  182;  3  C.  &  P.  335,  S.  C.  This  case  is  probably 
correct  law,  though,  on  one  occasion,  where  the  declaration  contained  similar 
words,  with  respect  to  an  indorsement  which  turned  out  to  have  been  made  by 
procuration,  Ld.  Ellenborough  directed  a  nonsuit,  Levy  v.  Wilson,  5  Esp.  179. 
In  Helmsley  v.  Loader,  2  Camp.  450,  the  same  learned  judge,  however,  under 
precisely  similar  circumstances,  would  not  allow  the  defendant  to  raise  the 
objection,  he  having  promised  to  pay,  with  a  knowledge  of  all  the  facts;  and 
his  lordship  was  inclined  to  think  that,  even  independently  of  the  promise,  it 
was  enough  to  show  that  the  defendant's  name  was  written  by  an  authorised 
agent.     Levy  v.  Wilson  may  therefore  be  considered  as  overruled. 

(3131) 


266  NEEDLESS  AVERMENT — NEEDLESS  PARTICULARITY.      [PAET  II. 

bill  for  default  of  paymeut,  an  allegation  of  acceptance  need  not  be 
proved,'  except  in  the  case  of  a  bill  payable  after  sight.  So,  where 
the  holder  of  a  bill  averred,  as  an  excuse  for  not  giving  notice  of 
dishonour  to  the  drawer,  that  the  latter  had  no  funds  in  the  acceptor's 
hands,  and  had  sustained  no  damage  from  want  of  notice,  this  last 
negative  averment  was  held  to  be  immaterial,  though  the  defendant 
had  pleaded  that  he  had  sustained  damage,  because  the  acceptor  had 
promised  him  to  provide  for  the  bill." 

§  260.  In  an  action  on  a  promissory  note  brought  by  the  indorsee  g  212 
against  the  maker,  the  defendant  pleaded  that  he  delivered  the  note 
to  the  indorser  to  enable  him  to  take  up  a  former  accommodation 
note,  and  that  after  the  note  declared  on  became  due,  he  paid  the 
amount  to  the  plaintiff.  On  a  replication  de  injuria  to  this  plea, 
the  court  held  that  the  averment  introductory  to  the  payment  of  the 
last  mentioned  note  might  be  rejected  as  surplusage,  and  need  not 
be  proved.  It  amounted,  in  fact,  to  a  mere  unnecessary  statement 
of  the  motive  which,  induced  the  defendant  to  give  the  note.  Mr 
Justice  Coleridge  observed  :  "  The  distinction  is  between  an  aver- 
ment, the  whole  of  which  can  be  got  rid  of  without  injury  to  the 
plea,  and  an  averment  of  circumstances  essential  to  the  defence, 
which  are  stated  with  needless  particularity.  In  the  latter  case  the 
whole  averment  must  be  proved  as  pleaded.  In  the  former  case,  in 
civil  or  criminal  proceedings,  the  whole  may  be  considered  as  struck 
out,  and  therefore  need  not  be  proved."  ^ 

§  261.  The  distinction  here  pointed  out  may  be  well  illustrated    ^  213 
by  the  case  of  Bristow  v.  Wright.*     That  was  an  action  on  the  case 
against  a  sherifP,  for  taking  the  tenant's  goods  in  execution  without 
satisfying  the  landlord  for  a  year's  rent;  and  the  plaintiff  averred 


'  Tannery.  Beau,  4  B.  &  C.  312;  6  D.  &  R.  338,  S.  C;  overruling  Jones  v. 
Morgan,  2  Camp.  474. 

^  Fitzgerald  v.  Williams,  6  Bing.  N.  C.  68. 

'  Shearm  v.  Burnard,  10  A.  &  E.  593,  596;  2  P.  &  D.  565,  S.  C.  See,  also, 
Noden  v.  Johnson,  16  Q.  B.  218,  226,  227,  per  Patteson,  J. 

*  2  Doug.  665;  1  Smith,  L.  C.  570,  S  C;  explained  and  confirmed  by  Buller, 
J.,  in  Peppin  v.  Solomons,  5  T.  E.  497,  498;  and  by  Ld.  Ellenborough  in 
Williamson  v.  Allison,  2  East,  450.  See,  also.  Savage  v.  Smith,  2  W.  Bl.  1101; 
Hoar  V.  Mill,  4  M.  &  Sel.  470. 

(3132) 


CHAP.  I.]       NEEDLESS  AVERMENT — NEEBLEjBS  PARTTCULARTTY.  267 

that  the  rent  was  reserved  quarterly,  whereas  it  turned  out  to  be 
reserved  yearly.  There,  had  the  whole  averment  as  to  the  reservai- 
tion  of  the  rent  been  struck  out,  the  plaintiff  could  not  have  main- 
tained his  action,  because  some  rent  must  necessarily  have  been 
averred  to  be  due  ;  and  therefore,  though  the  plaintiff  need  not 
have  stated  in  which  manner  the  rent  was  reserved,  yet,  as  he  had 
chosen  to  do  so,  the  defendant  was  held  entitled  to  avail  himself  of 
the  defect  of  proof  in  that  particular.  So,  if  in  justifying  the 
taking  of  cattle  damage  feasant,  in  which  case  it  is  sufficient  to 
allege  that  they  were  doing  damage  in  the  defendant's  freehold,  he 
should  needlessly  state  a  seisin  in  fee,  which  is  traversed,  the  precise 
estate  which  he  has  set  forth  becomes  an  essentially  descriptive 
allegation,  and  must  be  proved  as  alleged.' 

§  262.  Upon  the  same  ground  it  was  held,  prior  to  the  Act  of  ?  213 
14  &  15  v.,  c.  100,  that  if  a  person  were  indicted  for  stealing  a  live 
fowl  he  could  not  be  convicted  upon  evidence  showing  that  he  had 
stolen  a  dead  one  ;"  and  the  allegation  of  the  colour  of  an  animal, 
though  wholly  unnecessary,  was,  as  a  matter  of  description,  obliged 
to  be  proved  as  laid.^  So,  where  an  indictment  for  bigamy  described 
the  second  wife  as  a  widow,  when  in  fact  she  had  never  been  mar- 
ried, the  misdescription  was  held  fatal,  though  it  was  unnecessary 
to  have  stated  more  than  her  name  ;*  and  where  a  crime,  alleged  to 
have  taken  place  "at  A.,  in  the  county  of  B.,  within  five  hundred 
yards  of  the  boundary  of  D.,  to  wit  at  C,  in  the  county  of  D.," 
was  proved  to  have  been  committed  in  D.,  the  prisoner  was  acquitted, 
Mr.  Justice  Crompton  observing,  "If  you  choose  to  go  out  of  your 
way  to  make  a  special  averment,  and  to  allege  a  particular  place  in 


^  Leke's  case,  Dyer,  365  ;  Turner  v.  Eyles,  3  B.  &  P.  456 ;  E.  v.  Dendy,  1 
E.  &  B.  835,  per  Cromijtou,  J. 

^  R.  V.  Edwards,  R.  &  R.  497.  Holroyd,  J.,  there  observed,  that  an  indict- 
ment for  stealing  a  dead  animal  should  state  that  it  was  dead  ;  for  upon  a 
general  statement  that  a  party  stole  an  animal,  the  law  will  intend  that  he 
stole  it  alive.  ^  St.  Ev.  434. 

*  R.  V.  Deeley,  1  Moo.  C.  C.  303;  but  see  R.  v.  Ogilvie,  2  C.  &  P.  230,  where 
the  prosecutor  being  described  as  A.  B.,  Esquire,  the  addition  was  rejected  as 
surplusage  by  Burrough,  J.  So,  in  R.  v.  Graham,  2  Lea.  547,  where  the  goods 
stolen  were  alleged  to  be  the  property  of  J.  H.,  Esq.,  commonly  called  Earl  of  C. 
in  the  Kingdom  of  Ireland,  it  was  held  that  the  words  marked  in  italics  might 
be  rejected  as  surplusage. 

(3133) 


268  SURPLUSAGE  IN  CRIMINAL  PROCEEDINGS.  [PAKT  n. 

the  indictment,  the  question  is,  whether  you  are  bound  to  prove  it. 
I  think  you  are.'"  In  these  cases,  the  essential  and  non-essential 
parts  of  the  statement  were  so  connected  and  dovetailed,  as  to  be 
incapable  of  separation,  and  therefore  both  were  considered  as  alike 
material. 


§  2C3.  The  language  of  Mr.  Justice  Coleridge,  cited  above,^  is  §  214 
also  important,  as  showing  that  the  law,  which  rejects  surplusage, 
applies  equally  in  criminal  as  in  civil  proceedings.  Thus,  if  a 
party  be  indicted  for  robbery  in  the  dwelling  house  of  A.  B.^  or  for 
arson  in  the  night  time,^  the  allegations  marked  in  italics  may  be 
rejected  as  surplusage,  and,  consequently,  need  not  be  proved.^  The 
case  of  R.  v.  Jones  will  illustrate  this  subject.*^  The  repealed  Act 
of  9  G.  4,  c.  41,  provided,'  in  §  29,  that  no  person,  not  a  parish 
patient,  should  be  taken  into  a  lunatic  asylum  without  a  certificate 
of  two  medical  men,  containing  certain  particulars.  §  30  enacted, 
that  any  person  who  should  knowingly,  and  tvith  intention  to  deceive, 
sign  such  certificate,  untruly  setting  forth  sUch  particulars,  should 
be  guilty  of  a  misdemeanor  ;  while  a  second  clause  made  it  a  sub- 
stantive offence  for  any  physcian,  surgeon,  or  apothecary  to  sign 
such  certificate,  without  having  visited  the  patient.  The  indictment 
stated  that  the  defendant,  being  a  surgeon,  knoivingly,  and  icith 
intention  to  deceive,  signed  the  certificate  iciihout  having  visited 
the  patient,  thus  blending  in  one  charge  two  distinct  oifences.  The 
jury  negatived  any  intent  to  deceive,  but  found  the  defendant  guilty; 
and  the  court  held  that  the  conviction  was  right,  since  the  averment 
of  intention  was  mere  surplusage. 


'  E.  V.  M'Kenna,  Ir.  Cir.  R.  416;  see,  also,  R.  r.  Durore,  1  Lea.  351;  1  East, 
P.  C.  45,  S.  C. ;  and  R.  v.  Upton-on-Severn,  6  C.  &  P.  133. 

2  See  ante,  end  of  I  260. 

^  E.  V.  Pye,  2  East,  P.  C.  786  ;  R.  v.  Johnstone,  id.  by  all  the  judges;  see, 
also,  R.  V.  Wardle,  R.  &  R.  9.  *  R.  v.  Minton,  2  East,  P.  C.  1021. 

*  For  other  instances,  see  R.  v.  Phillips,  R.  &  R.  369  ;  R.  v.  Oxford,  id. 
382  ;  R.  V.  Summers,  2  East,  P.  C.  785 ;  R.  v.  Hickman,  id.  593 ;  1  Lea.  318, 
S.  C;  R.  V.  Radley,  1  Den.  450';  R.  v.  Otway,  1  Ir.  Law  R.,  N.  S.  69  ;  R.  v. 
Williams,  2  Den.  61  ;  R.  v.  Kealey,  id.  68;  R.  v.  Healey,  1  Moo.  C.  C.  1 ;  2 
Russ.  C.  &  M.  786—789.  6  2  B.  &  Ad.  611. 

'  This  Act  was  repealed  by  2  &  3  W."  4,  c.  107,  which,  in  its  turn,  was 
repealed  by  8  &  9  V.,  c.  100,  which  was  amended,  and  partially  repealed,  by 
16  &  17  v.,  c.  96,  the  Act  now  in  force. 

(3134) 


CHAP.  I.]  CUMULATIVE   ALLEGATIONS   IMMATERIAL,  269 

§  264.  So,  where  an  indictment  charged  the  defendants  with  §  215 
conspiring  to  indict  the  prosecutor  falsely,  with  intent  to  extort 
money,  they  were  held  to  be  rightly  convicted,  though  the  jury,  in 
finding  them  guilty  of  conspiring  to  indict  with  the  intent  alleged, 
expressly  negatived  any  conspiracy  to  make  a  false  charge;  for  the 
court  observed  that  a  conspiracy  to  prefer  an  indictment  for  pur- 
poses of  extortion  was  doubtless  a  misdemeanor,  whether  the 
charge  was  true  or  false.'  So,  where  a  parish  was  indicted  for 
non-repair  of  a  highway,  an  allegation  that  the  road  in  question  was 
an  immemorial  highway  has  been  rejected  as  surplusaee."  Upon 
an  indictment,  too,  for  jointly  receiving  stolen  property,  persons 
guilty  of  separately  receiving  any  part  of  such  property  may  be 
convicted.^  If  a  common  law  offence  belaid  as  committed  "against 
the  form  of  the  statute,"  the  allegation  may  be  rejected  as  sur- 
plusage.* 

§  265.  A  second  rule  respecting  variances  is,  that  cumulaiive  §  215 
allegations,  or  such  as  merely  operate  in  aggravation,  are  immaterial, 
provided  that  sufficient  is  proved  to  establish  some  right,  offence, 
or  justification,  included  in  the  claim,  charge,  or  defence,  specified 
on  the  record.^  This  rule,  as  applicable  to  criminal  proceedings, 
was  adopted  and  defined  by  Lord  Ellenborough  in  the  case  of  R  v. 
Hunt.*^  There  the  defendant  was  charged  in  an  information  with 
composing,  printing,  and  publishing  a  libel,  but  no  evidence  was 
given  to  show  that  he  was  the  author.  His  counsel  thereupon 
claimed  an  acquittal  on  his  behalf,  but  the  learned  judge  observed, 
"It  is  enough  to  prove  publication.'  If  an  indictment  charges  that 
the  defendant  did  and  caused  to  he  done^  a  particular  act,  it  is 


'  R.  V.  Hollingberry,  4  B.  &  C.  329.  ^  jj  ,,  Turweston,  16  Q.  B.  109. 

''  24  &  25  v.,  c.  96,  ^  94,  enacts,  that,  "  if  upon  the  trial  of  any  two  or  more 
persons  indicted  for  jointly  receiving  any  property,  it  shall  be  proved  that 
one  or  more  of  such  persons  separately  received  any  part  or  parts  of  such 
property,  it  shall  be  lawful  for  the  jury  to  convict  upon  such  indictment  such 
of  the  said  persons  as  shall  be  pro%'ed  to  have  received  any  part  or  parts  of 
such  property." 

*  R.  V.  Mathews,  5  T.  R.  162.  See,  also,  14  &  15  V  ,  c.  100,  §  24,  cited  post, 
I  280,  n.'.  ^R.v.  Macpherson,  39  L.  J..  P.  C.  59  ;  11  Cox,  604,  S.  C, 

«  Camp.  583. 

^  S.  P.  in  R.  V.  Williams,  2  Camp.  646,  per  Lawrence,  .J. 

*  S.  P.  per  Ld.  Mansfield,  in  R.  v.  Middlehurst,  1  Burr.  400. 

(3135) 


270  CUMULATIVE   ALLEGATIONS   IMMATERIAL.  [PART.  II. 

enough  to  prove  either.  The  distinction  runs  through  the  whole 
criminal  law;  and  it  is  invariably  enough  to  prove  so  much  of  the 
indictment  as  shows  that  the  defendant  has  committed  a  substantive 
crime  therein  specified." 

§  266.  Thus,  on  an  indictment  for  murder  the  prisoner  may  be  ^  oig 
convicted  of  manslaughter,  for  the  averment  of  malice  aforethought 
is  merely  matter  of  aggravation.  ^  So,  on  an  indictment  for  burglary 
and  stealing,  if  the  prosecutor  establish  his  case  with  the  exception 
of  proving  that  the  breaking  was  by  night,  the  prisoner  may  be 
convicted  of  housebreaking;^  if  no  breaking  be  proved,  but  the 
property  stolen  be  laid  in  the  indictment,  and  be  proved  by  the 
evidence,  to  be  of  the  value  of  five  pounds,  the  verdict  may  be 
guilty  of  stealing  in  a  dwelling-house  to  that  amount;"  if  no  satis- 
factory evidence  be  offered  to  show,  either  that  the  house  was  a 
dwelling-house,  or  some  building  communicating  therewith  ;  or  that 
it  was  the  dwelling-house  of  the  party  named  in  the  indictment; 
or  that  it  was  locally  situated  as  therein  alleged;  or  that  the  stolen 
property  was  of  the  value  of  five  pounds;  still,  the  prisoner  may  be 
convicted  of  simple  larceny,  provided  it  appear  that  any  goods  were 
stolen  by  him.*  So,  on  a  charge  of  stealing  in  a  dwelling-house 
with  menaces,^  or  of  stealing  from  the  person,  with  or  without 
violence,''  or  of  stealing  as  a  servant,'  the  prisoner  may  be  found 
guilty  of  larceny,  if  the  evidence  be  not  sufficient  to  prove  the 
commission  of  the  more  aggravated  crime;  ^  and  an  indictment 
under  the  statute  for  horse  stealing,  though  bad  for  not  describing 
the  animal  by  any  term  used  in  the  Act,  will  support  a  conviction 
for  larceny.^  Again,  on  the  same  principle,  if  an  indictment  for 
treason  or  conspiracy  charge  several  overt  acts,  it  is  sufficient  to 
prove  one; '°  and,  on  an  indictment  for  obtaining  property  by  several 
false  pretences,  it  is  not  necessary  to  prove  them  all,  unless  they 


»  Ck).  Lit.  282  a.  '  Under  24  &  25  V.,  c.  96,  §  56. 

•''  Under  24  &  25  V.,  c.  96,  §  60;  see  R.  v.  Compton,  3  C.  &  P.  418,  per 
Gaselee,  J. 

*  R.  I'.  Bullock,  1  Moo.  C.  C.  423,  n.  a  ;  R.  v.  Brookes,  C.  &  ISIarsh.  543,  per 
Patteson,  J.  ;  R.  v.  Jackson,  cited  2Russ.  C.  &  M.  801,  per  Cresswell,  J. 

5  See  24  &  25  V. ;  c.  96,  §  61.  «  See  24  &  25  V.,  c.  96,  U  40,  43. 

'  R.  V.  Jennings,  Dears.  &  Bell,  447  ;  24  &  25  V.,  c.  96,  |  67. 

8  2  Hale,  302-;  2  East,  P.  C.  784.     »  R.  v.  Beaney,  R.  &  R.  416.      ^°  Fost.  194. 

(3136) 


CHAP   I.]      CUMULATIVE    ALLEGATIONS — SEVERAL   INTENTS.  271 

are  so  connected  as  to  be  incapable  of  separation,'  but  it  will  suffice 
to  prove  the  one  or  more,  by  which  the  property  was  in  fact 
obtained.^ 


§  267.  In  like  manner,  if  a  compound  intent,  or  several  intents,  §  217 
be  laid  in  the  indictment,  and  if  one  part  of  the  corr" pound  intent, 
or  each  of  the  several  intents,  when  coupled  with  the  act  done, 
constitute  an  offence,  it  will  not  be  necessary  to  prove  the  whole 
as  laid.  Thus,  an  indictment  for  killing  a  sheep  with  intent  to 
steal  the  whole  carcase,  will  be  supported  by  proof  of  an  intent  to 
steal  part  of  the  carcase.^  So,  if  a  prisoner  be  charged  with  obtainino- 
an  order  for  a  certain  sum  from  the  prosecutor  with  intent  to 
defraud  him  of  the  same,  he  may  be  legally  convicted,  though  it 
appears  that  his  real  intention  was  to  cheat  the  prosecutor  out  of  a 
small  portion  only  of  the  proceeds  of  the  order.*  So,  a  man  accused 
under  the  old  law  of  assaulting  a  girl  with  intent  to  abuse  her  and 
carnally  know  her,  has  been  found  guilty  of  an  assault  with  intent 
to  abuse  simply;^  and  a  party  indicted  for  publishing  a  libel  with 
intent  to  defame  certain  magistrates,  and  also  to  bring  the  adminis- 
tration of  justice  into  contempt,  may  be  found  guilty,  if  the  libel 
was  published  with  either  of  those  intents.** 

§  268.  But  the  intent  proved  must  either  correspond  with,  or  be    ^  217 
included  in,  the  intent  alleged.     Thus  it  will  be  a  fatal  variance,  if 
an  indictment  for  burglary  charge  an  intent  to    steal,   and  it  be 
shown  that  the  real  intent  was  to  commit  rape  or  murder;  ^  and  a 
prisoner  charged  with  burglary  and  stealing  will  be  acquitted,  if  no 

'  R.  V.  Wickham,  10  A.  &  E.  34.  ^  jj   ^   j^^^^  jj   ^  jj   jg^ 

*  R.  V.  Williams,  1  Moo.  C.  C.  107.  That  case  was  decided  on  the  Act  of  14 
G.  2,  c.  6  (now  repealed),  which  speaks,  in  the  alternative,  of  an  intent  to  steal 
the  whole  carcase  or  any  part  of  the  carcase.  The  same  point  seems,  however, 
to  have  been  ruled  by  Cresswell,  J.,  in  R.  v.  Marley,  cited  2  Russ.  C.  &  M.  137, 
which  case  must  have  turned  on  the  language  of  7  &  8  G.  4,  c.  29,  g  25.  This 
last  Act  uses  the  words  "with  intent  to  steal  the  carcase  or  skin,  or  any  part 
of  the  cattle  so  killed,"  t^c.  The  principle  in  both  cases  was  the  same,  namely 
"that  the  offence  of  intending  to  steal  a  part  was  part  of  the  offence  of  in- 
tending to  steal  the  whole,  and  that  the  statute  meant  to  make  it  immaterial 
whether  the  intent  applied  to  the  whole,  or  only  to  part."  Per  Cur.  1  Moo. 
C.  C.  111.  *  R.  V.  Leonard,  1  Den.  304. 

*  R.  V.  Dawson,  3  Stark.  R.  62,  perHolroyd,  J.     See  24  &  25  V.,  c.  100,  ?  52, 
«  R.  V.  Evans,  3  Stark.  R.  35,  per  Bailey,  J.  '  2  East,  P.  C.  514. 

(3137) 


272  HOW   FAR   INTENT   MUST    BE    PROVED    AS    LAID.       [PAET   II. 

property  was  taken,  though  it  appear  that  the  house  was  entered 
with  an  intent  to  steal:  and  though,  had  larceny  actually  been 
committed,  he  would  have  been  convicted  without  any  allegation  in 
the  indictment  of  a  felonious  intent.' 


§  269.  The  rule  under  discussion  has  been  adopted  by  the  Legis-  §  218 
lature  on  several  occasions.  Thus,  if  a  woman  be  charged  with  the 
murder  of  her  infant,  she  may  be  convicted  of  endeavoring  to 
conceal  its  birth; "  if  a  person  be  indicted  for  felony  in  administering 
poison  so  as  to  endanger  life,  or  to  inflict  grievous  bodily  harm,  he 
may  be  convicted  of  the  misdemeanor  of  administering  poison  with 
intent  to  injure,  aggrieve,  or  annoy  some  one  ;^  and  on  Ihe  trial  of 
an  indictment  for  simple  or  aggravated  robbery,  the  jury  may 
convict  of  a  simple  or  aggravated  assault  with  intent  to  rob,  if  the 
evidence  shall  prove  such  an  offence  to  have  been  committed.*  So, 
upon  a  count  for  maliciously  wounding,  or  for  maliciously  inflicting 
grievous  bodily  harm,  against  the  statute,  a  prisoner  may  be  con- 
victed of  a  common  assault,  even  though  the  term  "  assault "  be 
not  found  in  the  indictment,^  Formerly,  the  Act  of  7  W.  4  &  1  V., 
c.  85,  §  11,  provided,  that  if  a  party  were  indicted  for  any  of  the 
ofPences  thereinbefore  mentioned,  or  for  any  felony,  where  the  crime 
charged  included  an  assault  against  the  person,  the  jury,  though 
they  acquitted  him  of  the  felony,  might  have  found  him  guilty  of 
the  assault,  if  the  evidence  ivarranfed  such  finding.  Great  diffi- 
culties, however,  having  arisen  in  the  construction  of  this  enact- 
meat,^  it  was  repealed  in  1851,'  and  a  clause  was  substituted  in  its 
place,^  which  provides  that,  "  if,  on  the  trial  of  any  person  charged 


1  R.  V.  Furnival,  R.  &  R.  44.5  ;  R.  v.  Vanrlercomb,  2  East,  P.  C.  514. 

2  24  &  25  v.,  c.  100,  §  60.  ?  24  &  25  V.,  c.  100,  ?  25. 

*  24  &  25  v.,  c.  96,  I  il  ;  R.  v.  Mitchell,  2  Den.  468  ;  3  C.  &  Kir.  181,  S. 
C.     See  R.  v.  Woodhall,  12  Cox,  240,  per  Denman,  J. 

5  R.  r.  Taylor,  1  Law  Rep.,  C.  C.  194  ;  38  L.  J.,  M.  C.  lOG  ;  and  11  Cox, 
261,  S.  C;  R.  V.  Canwell,  11  Cox,  263  ;  R.  v.  Oliver,  1  Bell,  218  ;  8  Cox,  384, 
S.  C;  R.  V.  Yeadon,  L.  &  Cave,  81  ;  9  Cox,  91,  S.  C.  See,  also,  R.  v.  Gutlirie, 
11  Cox,  .522;  1  Law  Rep.,  C.  C.  241  ;  39  L.  J.,  M.  C.  95,  S.  C. 

«  R.  V.  Bird,  2  Den.  94- 

■^  14  <fe  15  v.,  c.  100,  §  10.  The  enactment  in  question  appears  to  have 
been  especially  obnoxious  to  the  Legislature,  for,  since  1851,  it  has  been  twice 
more  repealed.     See  24  &  25  V.,  c.  95,  Sch. ;  and  24  &  25  V.,  c.   101,  Sch. 

8  14  &  15  v.,  c.  100,  I  9.     See  R.  v,  M'Pherson,  26  L.  J.,  M   C.  134. 

(3138) 


CHAP.  I.]  CONVICTION  OF  LESS  OFFENCE  THAN  THAT  CHARGED.  273 

with  any  felony  or  misdemeanor/  it  shall  appear  to  the  jury  npon 
the  evidence  that  the  defendant  did  not  complete  the  offence 
charged,  but  that  he  was  guilty  only  of  an  attempt  to  commit  the 
same,  such  person  shall  not  by  reason  thereof  be  entitled  to  be 
acquitted,  but  the  jury  shall  be  at  liberty  to  return  as  their  verdict, 
that  the  defendant  is  not  guilty  of  the  felony  or  misdemeanor 
charged,  but  is  guilty  of  an  attempt  to  commit  the  same,  and  there- 
upon such  person  shall  be  liable  to  be  punished  in  the  same  manner, 
as  if  he  had  been  convicted  upon  an  indictment  for  attempting  to 
commit  the  particular  felony  or  misdemeanor  charged  in  the  said 
indictment;  and  no  person,  so  tried  as  herein  lastly  mentioned,  shall 
be  liable  to  be  afterwards  prosecuted  for  an  attempt  to  commit  the 
felony  or  misdemeanor  for  which  he  was  so  tried." 

§  270.  In  the  Articles  of  War  established  for  the  government  of  ^  218a, 
the  Navy,  the  rule,  as  illustrated  in  the  three  preceeding  sections,  is 
fully  recognised.  For  instance,  "  the  Naval  Discipline  Act,  1866,"  ^ 
expressly  enacts,  in  §  48,  that  "  where  any  prisoner  shall  be  charged, 
with  murder,  a  court-martial  may  find  him  guilty  of  manslaughter, 
or  of  a  common  assault;  where  he  may  be  charged  with  sodomy,  a. 
court-martial  may  find  him  guilty  of  an  indecent  assault;  where  he 
shall  be  charged  with  theft,  a  court-martial  may  find  him  guilty  of" 
an  attempt  to  thieve,  or  of  embezzlement,  or  of  wrongful  appro- 
priation of  property  belonging  to  another  ;  and  generally,  where 
any  prisoner  shall  be  charged  with  any  offence  under  this  Act,  he 
may,  upon  failure  of  proof  of  the  commission  of  the  greater  off'ence, 
be  found  guilty  of  another  offence  of  the  same  class  involving  a 
less  degree  of  punishment,  but  not  of  any  offence  involving  a 
greater  degree  of  punishment." 

§  270a.  The  Army  Act,   1881,'  contains  provisions  to  the  same 
effect  in  §  56,   which  enacts,  that   any  prisoner  charged  before  a 
cotu't- martial  with  stealing  may  be  found  guilty   of  embezzlement,    • 
or  of  fraudulently  misapplying  money  or  property;  and  if  he  be 
charged  with  embezzlement  may  be  convicted  of  stealing  or  of 


'  See  R.  V.  Ryland,  11  Cox,  101;  R.  v.  Hapgood  &  Wyatt,  id.  471. 
'^29&30  v.,  c.  109. 
M4  &  45  v.,  c.  58. 

18  LAW  OF  EVID. — V.  I.  (3139) 


274  CUMULATIVE  ALLEGATIONS  IN  CIVIL  MATTERS.       [PAET  11. 

fraudulent  misapplication;  and  if  he  be  charged  with  desertion  may 
be  found  guilty  of  an  attempt  to  desert,  or  of  being  abroad  without 
leave;  and  if  he  be  charged  with  attempting  to  desert  may  be  found 
guilty  of  desertion  or  of  illegal  absence.  The  section  then  concludes 
with  a  general,  but  not  very  happily  expressed,  enactment,  that  "a 
prisoner  charged  before  a  court-martial  with  any  other  ofifence  under 
this  Act  may,  on  failiare  of  proof  of  an  ofPence  being  committed 
under  circumstances  involving  a  higher  degree  of  punishment,  be 
found  guilty  of  the  same  offence  as  being  committed  under  circum- 
stances involving  a  less  degree  of  punishment." 

§  27 1.  In  civil  actions  the  same  rule  prevails.  Thus,  in  an  action 
for  defamation,  if  the  plaintifP  allege  special  damage,  he  need  not 
prove  it,  provided  the  words  be  actionable  per  se.'  So  in  an  action 
on  a  policy  of  insurance,  the  material  allegation  is  the  loss  ;  but 
whether  total  or  partial,  is  a  mere  question  of  degree  ;  and  if  the 
former  be  alleged,  proof  of  the  latter  is  sufficient.^  It  seems 
scarcely  necessary  to  add,  that  a  party  may  claim  in  his  statement 
of  complaint  a  less  right  than  he  is  able  to  prove,  provided  that 
the  lesser  right  claimed  does  not  differ  in  kind  from,  but  is  included 
in,  the  greater  right  proved.'* 

§  278.  The  law  recognises  a  third  rule  in  regard  to  variances, 
to  the  effect  that  mere  formal  allegations  need  not  be  proved.  The 
term  "  formal  allegations"  comprises,— among  other  matters, — all 
those  averments  of  place,  time,  number,  value,  quality,  and  the  like, 
which  may  be.  inserted  in  the  pleadings,  without  being  either  essen- 
tially descriptive  of  the  subject  of  the  claim  or  charge,  or  otherwise 
rendered  material  by  special  circumstances.  It  includes  also  a 
multitude  of  other  idle  statements,  which  in  former  times,  English 
lawyers,  with  tautological  pedantry,  loved  to  introduce  into  every 
record  of  legal  proceedings.  While  judges  were  content  to  bestow 
more  attention  on  technical  precision  than  on  substantial  justice, 
the  rule  in  question  was    highly    important  ;  but  since  the  late 


1  Smith  V.  Thomas,  2  Bing.  N.  C.  380,  per  Tindal,  C.  J. 

^  Gardner  v.  Croasdale,  2  Burr.  904  ;  Benson  v.   Chapman,   2  H.  of  L.   Cas. 
696,  722  ;  8  Com.  B.  950,  965,  S.  C. ;  King  v.  Walker,  2  H.  &  C.  384. 

5  Duncan  v.  Louch,  6  Q.  B.  904,  914  ;  Bailey  v.  Appleyard,  8  A.  &  E.   167, 
per  Coleridge,  J. 

(3140) 


CHAP.  I.]    FORMAL  ALLEGATIONS  NEED  NOT  BE  PROVED.         275 

amendments  in  the  law,  it  has  fortunately  become  a  matter  more  of 
historical  curiosity  than  of  present  practical  interest. 

§  280.  So,  far,  indeed,  as  civil  actions  are  concerned,  the  rule  has  I  226 
passed  into  a  dead  letter;  and  even  in  the  administration  of  criminal 
justice  it  has,  by  virtue  of  Lord  Campbell's  Act  of  1851,'  become 
of  little  importance,  and  a  few  examples  will  suffice  to  illustrate  its 
operation.  And  first,  as  to  averments  of  place.  It  is  now  sufficient 
in  all  cases,  excepting  where  local  description  is  required,  to  state  in 
the  margin  of  the  indictment  the  county,  city  or  other  jurisdiction, 
as  the  venue  for  all  the  facts  averred  in  the  body  of  the  indictment.^ 

^  14  &  15  v.,  c.  100,  ^  23,  enacts,  that  "  it  shall  not  be  necessary  to  state 
any  venue  In  the  body  of  any  indictment,  but  the  county,  city  or  other  juris- 
diction named  in  the  margin  thereof  shall  be  taken  to  be  the  venue  for  all 
the  facts  stated  in  the  body  of  such  indictment  ;  provided  that'in  cases  wlicre 
local  description  is  or  hereafter  shall  be  required,  such  local  description  shall 
be  given  in  the  body  of  the  indictment  :  and  provided  also,  that  where  an  in- 
dictment for  an  oiience  committed  in  the  county  of  any  city  or  town  corpo- 
rate shall  be  preferred  at  the  assizes  of  the  adjoining  county,  such  county  of 
the  city  or  town  shall  be  deemed  the  venue,  and  may  either  be  stated  in  the 
margin  of  the  indictment,  with  or  without  the  name  of  the  county  in  Avhich 
the  oifender  is  to  be  tried,  or  be  stated  in  the  body  of  the  indictment  by  way 
of  venue."  I  24  enacts,  that  "no  indictment  for  any  ofience  shall  be  held 
insufficient  tor  want  of  the  averment  of  any  matter  unnecessary  to  be  proved, 
nor  for  the  ommission  of  the  words  '  as  appears  by  the  record, '  or  of  the  words 
'with  force  and  arms,'  or  of  the  words  '  against  the  peace,'  nor  for  the  inser- 
tion of  the  words  against  the  form  of  the  statute,'  instead  of  'against  the 
form  of  the  statutes, '  or  vice  versa,  nor  for  that  any  person  mentioned  in  the 
indictment  is  designated  by  a  name  of  office,  or  other  descriptive  appellation 
instead  of  his  proper  name,  nor  for  omitting  to  state  the  time  at  which  the 
offence  was  committed  in  antj  case  where  time  is  not  of  the  eswnce  of  the  offence, 
nor  for  stating  the  time  imperfectly,  nor  for  stating  the  offence  to  have  been 
committed  on  a  day  subsequent  to  the  finding  of  the  indictment,  or  on  an 
impossible  day,  or  on  a  day  that  never  happened,  nor  for  want  of  a  proper 
or  perfect  venue,  nor  for  want  of  a  proper  or  formal  conclusion,  nor  for  want 
of  or  imperfection  in  the  addition  of  any  defendant,  nor  for  want  of  the 
statement  of  the  value  or  price  of  any  matter  or  thing,  or  the  amount  of 
damage,  injury,  or  spoil,  in  any  case  where  the  value  or  juice,  or  the  amount 
of  d.image,  injury,  or  spoil,  is  not  of  the  essence  of  the  offence.  |  25  enacts, 
that  ''every  objection  to  any  indictment  for  any  formal  defect  apparent  on 
the  face  thereof  shall  be  taken,  by  demurrer  or  motion  to  (juash  sr.cli  indict- 
ment, bef  )re  the  jury  sliall  be  sworn,  and  not  afterwards;  and  every  court, 
before  which  any  sucli  objection  shall  l)e  taken  for  the  formal  defect,  may,  if 
it  be  thought  necessary,  cause  the  indictment  to  1)e  forthwith  amended  in  such 
particular  by  some  officer  of  the  court  or  other  person,  and  thereupon  the 
trial  shall  proceed  as  if  no  such  defect  had  appeared." 

'^  14  &  15  v.,  c.  lOU,  ^   23,  cited  in   last  note.     See,  as  to  the  former  law, 

(3141) 


27G  AVERMENTS  OF  PLACE — LOCAL  OFFENCES.  [PAHT  II. 

Even  before  this  salutary  alteration  was  introduced  into  the  law, 
it  was  held  to  be  no  objection  in  the  case  of  a  transitory  felony, 
that  there  was  no  such  parish  in  the  county,  as  that  in  which  the 
offence  was  stated  to  have  been  committed.' 

§  281.  In  indictments,  however,  for  those  offences  which  the  ^  227 
law  regards  as  bearing  a  local  character,  the  proof  respecting  the 
place  must  still  coiTespond  with  the  allegation;  though  probably 
in  most  cases  of  variance  on  this  point  the  courts  would  sanction 
an  amendment  of  the  record."  The  distinction  between  local  and 
transitory  offences  is  not  very  clearly  drawn,  but  in  the  former  cate- 
gory may  be  safely  included, —  among  others, — burglary,*  but  not 
highway-robbery;*  house-breaking;^  stealing  in  a  dwelling-house;® 
sacrilege;'  riotously  demolishing  churches,  houses,  machinery,  &c.  ;* 
maliciously  firing  a  dwelling-house,  perhaps  an  ont-house,  but  not  a 
stack;''  forcible  entry;'"  poaching;"  nuisances  to  highways;'"  and 
malicious  injuries  to  sea-banks,  mill-dams,  or  other  local  property. 
In  most  of  these  cases  it  is  sufficient  to  allege  and  prove  the  parish, 
township,  or  other  local  district,  less  than  a  county,  in  which  the 
offence  was  committed;'^  but  in  some,  a  more  accurate  description 
is  necessary. 

§  282.  Thus,  an  indictment  for  not  repairing  a  highway  must    *  ^^ 
specify  the  situation  of  the  road  within  the   parish,  and  any  sub- 
stantial variance  between  the  description  and  the  evidence  will  be 
material.'*     So,  on  an  indictment  for  night  poaching,  it   has  been 


E.  V.   Hollond,  5    T.  R.    624,   625  ;  R.  v.  Haynes,   4    M.   &  Sel.   214 ;    R.    v. 
Feargus  O'Connor,  5  Q.  B.  16;  7  G.  4,  c.  64,  §  20. 

'  R.  V.  Woodward,  1  Moo.  C.  C.  323;  R.  v.  Bowling,  Ry.  &  M.  433. 

*  14  &  15  v.,  c.  100,  ?  1,  cited  ante,  ^  249. 

3  1  Russ.  C.  &  M.  826;  R.  v.  St.  John,  9  C.  &  P.  40. 

*  R.  V.  Bowling,  Ry.  &  M.  433. 

s  R.  v.  Bullock,  cited  in  n.  to  1  Moo.  C.  C.  324. 

«  R.  V.  Xapper,   1   Moo.   C.   C.  44;   R.   v.  Jarrald,  L.  &  Cave,  301;  32  L.  J. 
M.  C.  258,  S.  C. 

^  Arch.  Cr.  PI.  365.  «  R.  v.  Richard.s,  1  M.  &  Rob.  177. 

«  R.  V.  Woodward,  1  Moo.  C.  C.  323.  '"  2  Leon.  186. 

"  R.  V.  Ridley,  R.  &  R.  515.  '^  R.  v.  Steventon,  1  C.  &  Kir.  55. 

^'  See  R.  V.  Napper,  1  Moo.  C.  C.  44. 

'*  R.  V.  Great  Canfield,   6  Esp.  136;  R.  v.  Upton-on -Severn,  6  C.  &  P.  133; 

(3142) 


CHAP.  1.]  AVERMENTS  OF  PLACE,  277 

held,  by  a  majority  of  the  judges,  that  the  locus  in  quo  must  be 
described  either  by  name,  ownership,  occupation,  or  abuttals,  and 
that  it  is  not  sufficient  to  allege  that  the  prisoner  was  found  "  iv  a 
certain  close  in  the  parish  of  A."  '  If  the  defendant  be  charged 
with  taking  or  destroying  fish  in  water  adjoining  a  dwelling-house, 
and  if  the  boundary  of  any  parish,  township,  or  vill,  happen  to  be 
in  or  by  the  side  of  such  water,  it  is  sufficient  to  prove  that  the 
oflfence  was  committed  either  in  the  parish,  township,  or  vill  named 
in  the  indictment,  or  in  any  such  local  district  adjoining  the  water;  ^ 
and  if  the  charge  be  that  of  stealing  oysters,  or  oyster  brood, 
the  bed,  laying,  or  fishery  may  be  described  by  name  or  other- 
wise, without  stating  it  to  be  in  any  particular  parish,  township,  or 
vill.^  An  indictment  for  an  affray  cannot  be  sustained,  unless  it 
contain  an  averment  that  the  offence  was  committed  in  a  public 
street  or  highway,  and  unless  that  averment  be  supported  by  corre- 
sponding proof.* 

§  283.  It  would  be  extremely  difficult  to  advance  any  sensible  g  228 
argument  in  favour  of  this  distinction,  which  the  law  recognises 
between  local  and  transitory  offences.  On  an  indictment,  indeed, 
against  a  parish  for  not  repairing  a  highway,  it  may  be  convenient 
to  allege,  as  it  will  be  necessary  to  prove,  that  the  spot  out  of 
repair  is  within  the  parish  charged  ;  and  in  those  very  few  cases, 
where  the  statute  upon  which  an  indictment  is  framed,  gives  the 
penalty  to  the  poor  of  the  parish  in  which  the  offence  is  committed, 
a  similar  allegation  may  be  properly  inserted  ;  but  why  a  burglar 
should  be  entitled  to  more  accurate  information  respecting  the 
house  he  is  charged  with  having  entered,  than  the  highway  robber 


E.  r.  Steven  ton,  1  C.  &  Kir.  55.  See  R.  v.  March.  Dow.  of  Downshire,  4  A. 
&  E.  232  ;  R.  v.  Waverton,  17  Q.  B.  562.  If  a  carriage-way  is  described  as 
a  bridle-way,  the  variance  is  material,  R.  v.  St.  Weonard's,  6  C.  &  P.  582. 
See,  also,  R.  v.  Lyon,  Ry.  &  M.  151. 

1  R.  V.  Ridley,  R.  &  R.  515,  under  the  repealed  Act  of  57  G.  3,  c.  90,  ?  1  ; 
R.  V.  Crick,  5  C.  &  P.  508,  per  Vaughan,  B.,  under  9  G.  4,  c.  69,  §  9.  In  R. 
V.  Owen,  1  Moo.  C.  C.  118,  where  the  close  was  described  by  name  and  occu- 
pation, but  the  name  proved  was  different  from  that  alleged,  the  judges  held 
that  the  variance  was  fatal.  See  R.  v.  Andrews,  2  M.  &  Rob.  37  ;  and  R.  v. 
Eaton,  2  Den.  274  ;  S.  C.  nom.  R.  v.  Uezzell,  3  C.  &  Kir.  150. 

2  24  &  25  v.,  c.  96,  ?  24.  '  Id.  g  26. 
*  R.V.  O'Neill,  I.  R.,  6C.  L.  1. 

(3143) 


278  ALLEGATIONS  OF  TIME,  NU3IBER  AND  VALUE.  [PART  II. 

can  claim  as  to  the  spot  where  his  offence  is  stated  to  have  been 
committed,  it  is  impossible  to  say  ;  either  full  information  should 
be  given  in  all  eases  or  in  none. 


§  284.  Averments  of  time  in  criminal  proceedings  are  now  even  §  229 
of  less  importance  than  those  of  j^icic^  J  for,  excepting  in  the  very 
few  cases  where  time  is  of  the  essence  of  the  offence,  the  indict- 
ment* need  not  contain  any  allegation  respecting  it.^  Indeed, 
independent  of  the  new  law,  the  date  specified  in  the  indictment 
has  been  so  far  disregarded,  that  where  a  court  had  no  jurisdiction 
to  try  a  criminal,  except  for  an  offence  committed  after  a  certain 
day,  the  judges  held  that  no  objection  could  be  taken  to  the  in- 
dictment in  arrest  of  judgment,  for  alleging  that  the  act  was  done 
before  that  day,  the  jury  having  expressly  found  that  this  was  not 
correct.^ 

§  285.  Allegations  of  number  and  value  are,  also,  in  general  g  230 
immaterial  in  indictments.  Thus,  if  a  party  be  charged  with 
stealing  five  horses,  he  may  be  convicted  of  stealing  one  ;  or  if 
he  be  indicted  for  larceny  or  robbery,  and  the  property  be  laid 
as  of  the  value  of  twenty  shillings,  the  offence  will  be  complete, 
though  it  appear  that  the  article  stolen  was  of  less  value  than  any 

'  The  same  law  prevails  with  respect  to  coroner's  inquisitions,  6  &  7  V., 
c.  83,  ^  2  ;  R.  v.  Ingham,  5  B.  &  S.  257  :  33  L.  J.,  Q.  B.  183,  S.  C. 

«  14  &  15  v.,  c.  100,  ?  24,  cited  ante,  g  280,  n.',  on  page  275.  In  rejecting  the 
old  rule,  which  required  a  day  to  be  specified,  but  did  not  require  that  day  to  be 
proved,  the  Legislature  has  adopted  my  Uncle  Toby's  reply  to  the  argument 
used  by  Corporal  Trim,, when  telling  his  unfortunate  story  of  the  King  of 
Bohemia.  "  'There  was  a  certain  King  of  Bohemia,  but  in  what  year  of  our 
Lord,' — '  I  would  not  give  a  halfpenny  to  know,'  said  my  Uncle  Toby.  '  Only 
atV  please  your  Honour,  it  makesa  story  look  the  better  in  the  face.''  ''  Leave  out 
the  date  entirely,  Trim ; '  said  my  Uncle,  '  a  story  jjasses  very  well  without  these 
niceties,  unless  07ie  is  pretty  sure  of  ''em!''  " 

*  R.  V.  Treharne,  1  Moo.  C.  C.  298.  In  this  case  the  court  claimed  juris- 
diction under  11  G.  4  &  1  W.  4,  c.  66,  ?  24,  which  provided  that  forgers  and 
utterens  might  be  tried  in  the  county  where  they  were  apprehended  or  in 
custody.  That  Act  came  into  operation  on  the  20th  of  July.  The  prisoner  was 
tried  where  he  was  apprehended.  The  act  of  forgery  complained  of  was  laid 
in  the  indictment  as  having  been  committed  on  the  2nd  July,  but  the  jury 
found  that  it  had  been  committed  after  the  20th.  See,  also,  R.  v.  Levy,  2 
Stark.  R.  458. 

(3144) 


CHAP  I.]  ALLEGATIONS   OF  NUMBER  AND  VALUE.  279 

coin  of  the  realm,  provided  that  it  was  of  some  value  to  the  owner.' 
In  certain  cases,  however,  value  is  essential  to  constitute  the  offence; 
as  where  a  bankrupt  is  indicted  for  fraudulently  concealing  or  re- 
moving property  to  the  value  of  ten  pounds,^  or  for  absconding  with 
property  to  the  amount  of  twenty  pounds,^  or  a  person  is  indicted 
for  maliciously  injuring  property  to  an  amount  exceeding  live 
pounds,^  or  a  tenant  is  indicted  for  stealing  a  chattel  or  fixture  let 
to  him  with  his  house  or  lodging,  and  exceeding  the  value  of  five 
pounds,^  or  a  party  is  charged  with  stealing  in  a  dwelling-house 
chattels,  &c.,  to  that  amount,®  or  with  stealing,  or  with  destroying 
or  damaging,  either  maliciously  or  with  intent  to  steal,  any  trees  in 
a  park,  pleasure-ground,  garden,  or  orchard,  above  the  value  of  one 
pound,  or  any  trees  elsewhere  above  the  value  of  five  pounds.^ 

§  286.  In  such  cases  as  these,  the  evidence  must  so  far  correspond  ^  230 
"with  the  allegation  as  to  show  that  the  statutable  ofPence  has  been 
committed  :  that  is,  the  property  fraudulently  or  maliciously  dealt 
with,  stolen,  or  destroyed,  must  be  proved,  as  well  as  alleged,  to  be 
of  the  requisite  value  ;  but  if  this  be  done,  the  exact  amount  speci- 
fied in  the  indictment  need  not  be  proved.  In  R.  v.  Forsyth,^  a 
bankrupt  was  charged  with  concealing  his  property,  and  the  indict- 
ment,— after  specifying  many  articles  without  stating  the  separate 
value  of  each, — added  these  words,  "  and  also  one  hundred  other 

^  E.  V.  Morris.  9  C.  &  P.  347,  per  Parke,  B. ;  R.  v.  Bingley,  5  C.  &  P.  602, 
per  Gurney,  B. ;  R.  v.  Clark,  R.  &  R.  181.  The  fact  of  the  article  being  in 
the  possession  of  the  prosecutor  is,  in  general,  evidence  that  it  was  of  value 
to  him.    Id. 

^  32  &  33  v.,  c.  62,  ^  11,  subs.  4,  5;  as  amended  by  46  &  47  V.,  c.  52, 
§  163  ;  35  &  .36  V.,  c.  57,  §  11,  subs.  4,  5,  Ir. 

3  32  &  33  v.,  c.  62,  ^2  ;  as  amended  by  46  &  47* V.,  c.  52,  |  163  ;  35  & 
36  v.,  c.  57,  ?  12,  Ir. 

*  24  &  25  v.,  c.  97,  §  51.  The  damage  must  be  done  at  one  time,  R.  v. 
Williams,  3  New  R.  338,  per  Ir.  C.  C. ;  9  Cox,  338,  S.  C.  The  value  of  each 
article  injured  need  not  be  stated,  but  it  will  be  sufficient  to  allege  that  the 
amount  of  the  aggregate  damage  exceeded  5Z.,  R.  v.  Thoman,  12  Cox,  54. 

*  24  &  25  V. ,  c.  96,  ?  74.  If  the  value  of  the  property  stolen  do  not  exceed 
5/.,  the  prisoner  is  not  liable  to  penal  servitude.     Id. 

«  24  &  25  v.,  c.  96,  ?  60. 

'  24  &  25  y.,  c.  96,  ^  32;  24  &  25  V.,  c.  97,  ??  20,  21.  Where  several 
trees  have  been  stolen  or  damaged  at  the  same  time,  their  collective  value  will 
satisfy  the  Act ;  R.  v.  Shepherd,  37  L.  J.,  M.  C.  45  ;  1  Law  Rep.,  C.  C.  118; 
and  11  Cox,  119,  S.  C.  «  R.  &  R.  274. 

(3145) 


280  ALLEGATIONS   OF  NU3IBER  AND   VALUE.  [pAKT  II. 

articles  of  furniture  and  a  certain  debt  due  from  J.  T.  to  the 
prisoner,  to  the  value  of  twenty  pounds  and  upwards;'"  but  the 
judges  held  that  this  indictment  was  bad,  as  all  the  property  con- 
cealed was  not  specified,  and  no  distinct  value  was  put  upon  the 
articles  enumerated.  It  would  seem  to  follow  from  this  case,  that 
where  value,  being  material,  is  ascribed  to  several  articles  collec- 
tively, the  offence  must  be  made  out  as  to  each  of  those  articles. 


§  287.  In  an  indictment  for  embezzlement  against  a  clerk  or  ^  231 
servant,  or  against  a  person  employed  either  in  her  Majesty's  public 
service,  or  in  the  police,  if  the  offence  relate  to  any  money  or  valu- 
able security,  it  is  sufficient  to  allege  that  money  was  embezzled, 
without  specifying  any  particular  coin  or  valuable  security;  and 
such  allegation  may  be  supported  by  equally  loose  evidence;"  and 
it  seems,  even  by  proof  of  a  general  deficiency  of  money  that  ought 
to  be  forthcoming,  without  showing  from  what  persons  the  money 
was  received,  or  of  what  coins  it  consisted,  or  that  any  particular 
sum  was  received,  and  not  accounted  for  by  the  prisoner.^  So, 
also,  "  in  any  indictment  in  which  it  shall  be  necessary  to  make 
any  averment  as  to  any  money,*  or  any  note  of  the  Bank  of 
England,  or  any  other  bank,  it  shall  be  sufficient  to  describe  such 
money  or  bank-note  simply  as  money,  without  specifying  any  parti- 
cular coin  or  bank-note  ;  and  such  allegation,  so  far  as  regards  the 
description  of  the  property,  shall  be  sustained  by  proof  of  any 
amount  of  coin  or  of  any  bank  note,  although  the  particular  species 
of  coin  of  which  such  amount  was  composed,  or  the  particular  nature 
of  the  bank-note,  shall  not  be  proved;  and  in  cases  of  embezzlement 
and  obtaining  money  or  bank-notes  by  false  pretences,  by  proof  that 
the  offender  embezzled  or  obtained  any  piece  of  coin  or  any  bank- 
note, or  any  portion  of  the  value  thereof,  although  such  piece  of 
coin  or  bank-note  may  have  been  delivered  to  him  in  order  that 
some  part  of  the  value  thereof  should  be  returned  to  the  party 


'  This  case  was  decided  under  the  repealed  Act  of  5  G.  2,  c.  30,  §  1. 
2  24  &  25  v.,  c.  96,  ?  71. 

*  R.  V.  Grove,  7  C.  &  P.  635  ;  1  Moo.  C.  C.  447,  S.  C,  per  eight  judges,  in- 
cluding the  three  chiefs,  against  the  remaining  seven. 

*  See  R.  V.  Gumble,  2  Law  Rep.,  C.  C.  1  ;  42  L.  J.,   M.  C.   7,  and  12  Cox, 
248,  S.  C. 

(3146) 


CHAP.  I.]  ALLEGATIONS  OF  QUALITY ESSENTIAL  DESCRIPTION.         281 

delivering  the  same,  or  to  any  other  person,  and  such  part  shall 
have  been  returned  accordingly."' 

§  288.  It  is  ofteu  allowable  to  omit  from  the  indictment,  and  it  ^  232 
is  seldom  necessary  to  prove  with  precision,  allegations  of  quality; 
or,  in  other  words,  those  allegations  which  describe  the  mode  in 
which  certain  acts  have  been  done.  Thus,  it  is  unnecessary  in  any 
indictment^  for  murder  or  manslaughter  to  set  forth  the  manner 
in  which,  or  the  means  by  which,  the  death  of  the  deceased  was 
caused;  but  it  is  sufficient  to  charge  in  every  indictment  for 
murder  that  the  defendant  did  felonously,  wilfully,  and  of  his 
malice  aforethought  kill  and  murder  the  deceased,  and  in  every 
indictment  for  manslaughter,  that  he  did  felonously  kill  and  slay 
him.^  Should,  too,  an  indictment  for  homicide  unnessarily 
allege  the  means  of  death,  it  would  be  quite  sufficient  for  the 
proof  to  agree  with  the  allegation  in  its  general  character,  without 
precise  conformity  in  every  particular.  So,  if  the  charge  be  of  a 
felonous  assault  with  a  staff,  and  the  proof  be  of  such  an  assault 
with  a  stone;  or  if  a  wound,  alleged  to  have  been  given  with  a 
sword,  be  proved  to  have  been  inflicted  by  an  axe;  or  if  a  pistol  be 
stated  to  have  been  loaded  with  a  bullet,  and  it  turns  out  to  have 
been  loaded  with  some  other  destructive  material,*  the  charge  is 
substantially  proved,  and  no  variance  occurs.^ 

§  289.  The   fourth   general    rule   which   regulates   the   law   of    o  .^oo 


U4  &  15  v.,  c.  100,  I  18. 

*  This  term  includes  inquisitions  taken  before   coroners,  R.  v.  Ingham,  33 
L.  J.,  Q.  B.  ia3;  5  B.  &  S.  257,  S.  C. 

^24&25  v.,  c.  100,^  6. 

*  R.  V.  Oxford,  9  C.  &  P.  525,  548.     See  R.  v.  Hughes,  5  C.  &   P.  126,  the 
marginal  note  of  which  is  calculated  to  mislead. 

*  1  East,  P.  C.  341 ;  R.  v.  Martin,  5  C.  &  P.  128,  per  Parke,  B. ;  1  Russ.  C. 

6  M.  557.  See  further,  as  to  the  law  prior  to  the  passing  of  Ld.  Campbell's 
Act  in  1851,  R.  v.  M'Conkey,   Ir.  Cir,   R.  77,  per   Torrens,  J. ;   R.  v.  Waters, 

7  C.  &  P.  250;  1  Moo.  C.  C.  457,  S.  C;  R.  v.  Culkin,  5  C.  &  P.  121;  R.  v. 
Thompson,  1  Moo.  C.  C.  139;  1  Lew.  C.  C.  193,  S.  C;  R.  v.  Kelly,  1  Moo. 
C.  C.  113,  1  I^fw.  C.  C.  194,  S.  C;  2  Hale,  185,  186;  R.  v.  Mosley,  1  Moo. 
C.  C.  97;  1  Lew.  C.  C.  189,  S.  C;  R.  v.  Tomlinson,  6  C.  &  P.  370,  per 
Patteson,  J. ;  R.  i;.  Turner,  1  Lew.  C.  C.  177,  per  Parke,  B. ;  R.  v.  Warman, 
1  Den.  183. 

(3147) 


282  MATTER  OP  ESSENTIAL  DESCRIPTION.  [PART  II. 

variance,  is  that  allegations  of  matter  of  essential  description 
should  be  proved  as  laid.  It  is  impossible  to  explain  with  pre- 
cision the  meaning  of  these  words;  and  the  only  practical  mode 
of  understanding  the  extent  of  the  rule  is  to  examine  some  of  the 
leading  decisions  on  the  subject,  and  then  to  apply  the  reasoning 
or  ruling  contained  therein  to  other  analogous  cases,  always 
bearing  in  mind  that  the  judges  have  large  powers  of  granting 
amendments  both  in  civil  and  in  criminal  proceedings.'  And  first, 
with  respect  to  the  criminal  law,  it  is  now  clearly  established,  that 
the  name  or  nature  of  the  property  stolen  or  damaged  is  matter  of 
essential  description.  Thus,  for  example,  if  the  charge  be  one  of 
firing  a  stack  of  hay,  and  it  turns  out  to  have  been  a  stack  of 
wheat;  or  if  a  man  be  accused  of  stealing  a  drake,  and  it  is  proved 
to  have  been  a  goose,  or  even  a  duck,  the  variance  is  fatal,  unless 
an  amendment  be  permitted.^  A  diverting  instance  of  the  appli- 
cation of  this  rule,  and  one  which  forcibly  illustrates  the  advantage 
of  allowing  amendments,  occured  some  years  back  at  the  assizes 
for  Hertford.  A  man  was  charged  with  stealing  "a  slop."  The 
theft  was  clearly  proved;  but,  when  called  upon  for  his  defence, 
the  prisoner  exclaimed,  "Why,  my  lord,  it  ain't  no  slop."  "You 
hear  what  he  says,"  observed  the  judge,  addressing  the  jury.  "Is 
it  a  slop,  gentlemen  ?"  "  No,  my  lord,  it's  a  smock,"  said  one  of 
the  jurymen.  "  Then  you  must  acquit  the  prisoner."  He  was 
acquitted;  but  the  grand  jury  not  being  discharged,  a  second 
indictment  was  preferred  and  found,  charging  him  with  stealing 
"a  smock."  Nothing  daunted  the  prisoner  now  pleaded  autrefois 
acquit,  and  called  several  witnesses  to  prove  that  the  article  he  had 
stolen  was  in  fact  a  slop,  and  this  question  was  submitted  to  a 
second  jury  with  much  gravity  by  the  learned  judge.' 

§  290.  With  respect  to  the  description  of  animals,  the  stealing    ^ 
of  which  is  made  a  statuable  offence,  it  would  seem  to  be  sufficient 
to  use  the  generic  term  which   includes  the  whole  species,  even 
though   the   Act   should    employ    more   specific   language.     This 


»  See  ante,  §?  220—225,  249. 

2  Under  §  1  of  14  &  15  V.,  c.  100,  cited. ante,  ^  249. 

3  29  Law  Mag.  12,  13. 

(3148) 


CHAP.  I.]  NAME  OF  PROPERTY  STOLEN  OR  DAMAGED.  283 

doctrine  has  been  recognised  by  the  judges  in  a  case  of  sheep 
stealing.  The  words  of  the  Act '  on  which  the  indictment  was 
founded,  were,  any  "ram,  ewe,  sheep,  or  lamb;"  the  charge  was 
of  killing  a  sheep,  with  intent  to  steal  the  carcase;  the  proof  was, 
that  a  sheep  was  killed,  but  the  sex  could  not  be  discovered. 
Upon  this,  the  prisoner's  counsel  contended,  that  the  jury  could 
not  presume  that  the  animal  was  a  wether,  and  that,  if  it  was  an 
ewe,  the  indictment  was  bad;  but  a  great  majority  of  the  judges, 
while  they  admitted  that  the  lirst  proposition  was  sound  law,  held 
that  the  word  "  sheep  "  was  a  generic  term,  which  included  equally 
rams,  ewes,  and  wethers,  and  the  conviction  was  accordingly  con- 
firmed.^ So,  an  indictment  for  stealing  a  sheep  will  now  be  sup- 
ported by  evidence  of  killing  a  lamb.'^  Whether  a  charge  of  stealing 
a  horse  would  be  sustained  by  proof  of  stealing  a  gelding,  a  mare, 
a  colt,  or  a  filly,*  is  by  no  means  clear;  though,  if  the  principle  be 
carried  out  to  its  legitimate  extent,  it  would  seem  that  no  variance 
would  in  such  case  arise. 


§  291.  On    prosecutions  for  forgery  under  the  old  law,  great    §  234a 
nicety  used  to  be  required  in  describing  the  instrument  forged; 
and  while  that  offence  continued   to   be  a  capital  crime,  many  a 
forger  had  reason  to  rejoice  that  an  excessive  minuteness  of  de- 


^  7  &  8  G.  4,  c.  29,  ^  25.  The  same  words  are  now  contained  in  24  &  25  V., 
c.  96,  I  10. 

2  R.  V.  M'Culley,  2  Moo.  C.  C.  34;  2  Lew.  C.  C.  272,  S.  C;  R.  v.  Bannam, 
Crawf.  &  D.  C.  C.  147.  These  cases  overrule  R.  v.  Puddifoot,  1  Moo.  C.  C. 
247. 

*  R,  V.  Spicer,  1  C.  &  Kir.  699;  1  Den.  C.  C.  82,  S.  C,  overruling  R.  v. 
Loom,  1  Moo.  C.  C.  160.  The  decision  in  R.  v.  Loom  was  under  the  repealed 
Act  of  15  G.  2,  c.  34,  which,  like  the  Act  of  7  &  8  G.  4,  c.  29,  g  25,  specified 
lambs  as  well  as  sheep.  In  an  old  Act  of  25  H.  8,  c.  13,  §§  2,  13,  which  is 
now  repealed  by  19  &  20  V.,  c.  64,  and  which  prohibited  persons  from  having 
above  2000  sheep,  it  was  expressly  enacted,  that  "lambs  under  the  age  of  one 
whole  year  shall  not  be  adjudged  for  sheep  prohibited  by  the  statute."  The 
special  insertion  of  such  a  clause  leads  rather  to  an  inference,  that,  without 
it,  the  mention  of  the  grown  animal  would  have  included  the  young.  See 
next  note. 

*  These  are  the  woids  used  in  24  &  25  V.,  c.  96,  ?  10.  Under  an  old  Act 
against  horse-stealing,  which  only  mentioned  "horses,  geldings,  and  marcs,"  it 
was  held  that  proof  of  stealing  a  filli/  supported  an  indictment  for  stealing  a 
marc,  R.  v.  Welland,  R.  *;.  R.  494. 

(3149) 


284     SUBSTANCE  OF  OFFENCE — NAME  OF  PERSON  INJURED.      [PAET  II. 

scription  afforded  an  opportunity  of  escape  from  the  gallows  by 
causing  a  variance  between  the  allegations  and  the  proofs.  The 
law,  however,  is  now  happily  amended,  and  the  punishment  for 
forgery  has  become  less  severe  but  more  certain.  The  forger  is  no 
longer  sentenced  to  death  on  conviction,  but  he  seldom  can  claim  an 
acquittal  on  the  ground  of  some  senseless  technicality.  The 
Act  of  18G1,  which  consolidates  the  law  on  this  subject,'  expressly 
enacts,  in  §  42,  that,  "  in  any  indictment  for  forging,  altering, 
offering,  uttering,  disposing  of,  or  putting  off,  any  instrument,  it 
shall  be  sufficient  to  describe  such  instrument  by  any  name  or 
designation  by  which  the  same  may  be  usually  known,  or  by  the 
purport  thereof  without  setting  out  any  copy  or  fac  simile  thereof, 
or  otherwise  describing  the  same  or  the  value  thereof."  A  similar 
laxity  of  description  is  permitted,  whenever  any  person  is  indicted 
for  engraving  or  making  "  any  instrument,  matter,  or  thing,"  or  for 
using  or  unlawfully  possessing  any  plate,  material,  or  paper  on 
which  any  instrument,  matter,  or  thing  shall  have  been  engraved, 
made,  or  printed.^ 

§  292.  In  all  indictments,  too,  for  offences  under  the  Debtors'  §  234b 
Act,  1869,^  or  the  Bankruptcy  Act,  1883,*  it  is  sufficient  to  "  set 
forth  the  substance  of  the  offence  charged,  in  the  words  of  the  Act 
specifying  the  offence,  or  as  near  thereto  as  circumstances  admit, 
without  alleging  or  setting  forth  any  debt,  act  of  bankruptcy,  trading 
adjudication,  or  any  proceeding  in,  or  order,  warrant  or  document 
of,  any  court  acting  under  the  Bankruptcy  Act,  1883."  *  The  Irish 
Debtor's  Act,  1872,  contains  a  similar  provision.* 

§  293.    The  name  of  the  person  injured,  ^  and,  indeed,  the  name  of    ^  235 


1  24  &  25  v.,  e.  98.  ""  24  &  25  V.,  c.  98,  I  43. 

3  32  &  33  v.,  c.  62,  §  19;  amended  by  46  &  47  V.,  c.  52,  I  149,  subs.  2. 

*  46  &  47  V.,  c.  52,  §§  31,  163—167. 

*  35  &  36  v.,  c.  57,  I  19,  Ir. 

«  See,  as  to  the  old  law  on  this  subject,  E.  v.  Biss,  8  C.  &  P.  773;  2  Moo.  C. 
C.  93,  S.  C;  E.  v.  Eobinson,  Holt,  N.  P.  E.  595;  E.  •;;.  Campbell,  1  C.  &Kir.  82; 
E.  V.  Waters,  1  Den.  356;  2  C.  &  Kir.  864,  S.  C;  E.  v.  Willis,  1  Den.  80;  E.  v. 
Stroud,  1  C.  &  Kir.  187;  2  Moo.  C.  C.  270,  S.  C;  E.  v.  Sweeny,  Ir.  Cir.  E.  366; 
E.  V.  Smith,  1  Moo.  C.  C.  402;  6  C.  &  P.  151,  S.  C;  E.  v.  Evans,  8  C.  &  P.  765; 
K.  V.  Sheen,  2  Id.  634;  E.  v.  Hogg,  2  M.  &  Eob.  380. 

(3150) 


I 


CHAP  I.]  NAMES  AND  DESCRIPTIONS  IN  INDICTMENTS.  285 

every  person  necessarily  mentioned  in  the  indictment,'  is  generally 
matter  of  essential  description,  and  must  formerly  have  been  proved 
with  a  precision  which  was  but  little  *  calculated  to  engender  any 
ardent  feelings  of  respect  for  the  criminal  law.  In  the  present  day, 
however,  there  can  be  little  room  for  doubt,  that  the  court  would  in 
every  case  of  mere  misnomer  ^  direct  an  amendment  to  be  made 
almost  as  a  matter  of  course;^  but  still  a  question  may  occasionally 
arise  as  to  what  the  nature  of  the  amendment  ought  to  be.  The  fol- 
lowing rules,  therefore,  may  furnish  some  guide  on  this  subject  : — • 
1st.  If  the  name  of  the  injured  party  cannot  be  proved,it  will  suffice  to 
describe  him  as  a  person  "  whose  name  is  to  the  jurors  unknown."  * 
2nd.  It  is  not  necessary  to  describe  a  party  by  what  is,  in  strictness, 
his  right  name  ;  but  it  will  be  sufficient  to  state  any  name  he 
has  assumed,^  or  by  which  he  is  generally  known,  and  the  omis- 
sion of  a  second  christian  name  has  been  frequently  held  to  be 
immaterial.  ®  3rd.  An  illegitimate  child  is  not  entitled  to  the 
surname  either  of  the  mother  or  of  the  putative  father,  but  can 
only  acquire  a  surname  by  reputation.^  4th.  The  proper  mode  of 
describing  a  peer  is  by  his  christian  name  and  rank  in  the  peerage; 
but  the  christian  name  may  be  omitted  ;  *  and  it  seems  that  under 
the  degree  of  a  duke,  a  noblgman  may  be  designated  by  the  simple 
title  of  "lord."^       5th.   Foreigners  of  rank  may  be  described  by 

^  See,  as  to  the  old  law  on  this  subject,  R.  v.  Dunmurry,  Ir.  Cir.  E.  312  ;  R. 
V.  Walker,  3  Camp.  264  ;  R.  v.  Bush,  R.  &  R.  372. 
^  See  R.  V.  Welton,  9  Cox.  297. 

*  Under  ^  of  14  &  1.5  V.,  c.  100,  cited  ante,  §  249. 

*  See  R.  V.  Welton,  9  Cox,  297. 

^  R.  V.  Norton,  R.  &  R.  510.  See  R.  v.  Williams,  7  C.  &  P.  298.  In  R.  v. 
Toole,  Dear.  &  Bell,  194  ;  7  Cox,  266,  S.  C,  where  the  only  proof  of  the  pro- 
secutor's christian  name  was  the  statement  of  a  witness,  who  said  that  he  had 
seen  the  prosecutor  sign  the  charge  against  the  prisoner,  and  the  deposition 
before  the  magistrates,  and  that  the  signatures  of  those  documents,  which  the 
witness  identified,  corresponded  with  the  name  laid  in  the  indictment,  the 
court  held  that  the  evidence  was  sutlScient. 

«  Att-Gen.  v.  Hawkes,  1  Tyr.  3  ;  R.  v.  Berriman,  5  C.  &  P.   601  ;    R.  v. , 

6  id.  408  ;  Williams  v.  Bryant,  5  M.  &.  W.  447  ;  2  Russ.  C.  &  M.  795—797. 
But  see  R.  v.  M'Anerney,  Ir.  Cir.  R.  270,  per  Crampton,  J. 

^  R.  V.  Waters,  1  Moo.  C.  C.  457  ;  7  C.  &  P.  250,  S.  C.  ;   R.  v.  Clark,   R.  & 
R.  358. 
■  *  R.  V.  Frost,  Pearce  &  D.  474. 

'  R.  V.  Pitts,  8  C.  &  P.  771,  where  the  prosecutor  was  described  as  "  George 
Talbot  Eice,  Lord  Dynevor,"  instead  of  "George  Talbot,  Baron  Dynevor  ;" 

(3151) 


286  NAMES  AND  DESCRIPTIONS  IN  INDICTMENTS.  [PART  11. 

their  christian  names  and  foreign  titles,  provided  they  be  generally- 
known  by  those  appellations  ;'  or  it  will  suffice,  as  it  seems,  to 
describe  them  by  their  christian  and  surnames,  with  the  addition  of 
the  word  esquire,  that  being  the  title  which  English  courtesy  con- 
fers on  foreign  noblemen.^  Gth.  If  a  parent  and  child  bear  the 
same  name,  it  will  suffice  in  an  indictment  to  describe  the  latter  by 
that  name  without  the  addition  of  "  junior."  ^  And  lastly,  where 
joint-stock  companies,  trustees,  or  other  joint  owners  have  been 
injured,  several  Acts  of  Parliment  have  been  passed,  which  render 
it  sufficient  in  such  cases  to  describe  in  the  indictment  one  person 
only  by  name,  and  to  state  that  the  offense  has  been  committed 
against  that  person,  and  another  or  others,  as  the  case  may  be.* 
By  a  statute  passed  in  the  present  reign,'^  the  same  laxity  of  de- 
E.  V.  Elliott,  id.  772,  where  the  words  were,  "The  Right  Honourable  William 
Fitzhardinge.  Lord  Segrave,"  he  being  an  earl.  It  seems  that  "Edward, 
Bishop  of  Hereford,"  is  not  a  right  description,  id.  771. 

'  R.  r.  Gregory,  8  Q.  B.  .508,  where  the  prosecutor  was  held  sufficiently  de- 
scribed as  "Charles  Frederick  Augustus  William,  Duke  of  Brunswick  and 
Luneberg,"  his  name  being  Ch.  Fr.  Aug.  AVm.  D'Este,  and  he  having  ceased 
to  be  the  reigning  Duke  ;  R.  v.  Sulls,  2  Lea.  861,  where,  in  an  indictment  for 
larceny,  the  goods  stolen  were  held  to  be  properly  laid  as  the  property  of 
Victory,  Baroness  Turkheim,  the  prosecutrix  being  an  Alsatian  lady,  -whose 
real  name  was  Selina  Victoire.  In  both  these  cases  the  parties  were  well  known 
by  the  names  used.  '^  R-  'V-  Graham,  2  Lea.  547. 

3R.  V.  Reace,  3  B.  &  A.  579  ;  R.  v.  Hodgson,  1  Lew.  C.  C.  236,  per  Parke, 
B.;  R.  V.  Bland,  id.,  per  Bolland,  B.  ;  Sweeting  v.  Fowler,  1  Stark.  R.  106  ; 
E.'t'.  Bayley,  7  C.  &.  P.  264.     See  ante,  §  19.5. 

*  7  G.  4,  c.  64,  §  14,  enacts,  that  "  in  any  indictment  or  information  for  any 
felony  or  misdemeanor,  wherein  it  shall  be  requisite  to  state  the  ownership  of 
any  property  whatsoever,  whether  real  or  personal,  which  shall  belong  to,  or 
be  in  the  possession  of,  more  than  one  person,  Avhether  such  persons  be  partners 
in  trade,  joint  tenants,  parceners,  or  tenants  in  common,  it  shall  be  sufficient 
to  name  one  of  such  persons,  and  to  state  such  property  to  belong  to  the  person 
so  named,  and  another  or  others,  as  the  case  may  be  ;  and  whenever,  in  any 
indictment  or  information  for  any  felony  or  misdemeanor,  it  shall  be  necessary 
to  mention,  for  any  purpose  whatsoever,  any  partners,  joint  tenants,  parceners, 
or  tenants  in  common,  it  shall  be  sufficient  to  describe  them  in  the  manner 
aforesaid  ;  and  this  provision  shall  be  construed  to  extend  to  all  joint-stock 
companies  and  trustees."     See,  also,  7  G.  4,  c.  46,  |  9. 

Ml  &  12  v.,  c.  43,  ?  4,  enacts  that  "  in  any  information  or  complaint,  or 
the  proceedings  thereon,  in  which  it  may  be  necessary  to  state  the  ownership 
of  any  property  belonging  to  or  in  the  possession  of  partners,  joint  tenants,  par- 
ceners, or  tenants  in  common,  it  shall  be  sufficient  to  name  one  of  such  persons, 
and  to  state  the  pi-operty  to  belong  to  the  person  so  named,  and  another  or 
others,  as  the  case  may  be ;  and  whenever  in  any  information  or  complaint,  or 
the  proceedings  thereon,  it  shall  be  necessary  to  mention,  for  any  purpose  what- 

(3152) 


CHAP.  I.]      NAME  OF  INJURED  PARTY  NEED  NOT  BE  PROVED.  287 

scription  is  allowed,  under  certain  circumstances,  in  informations  or 
complaints  before  justices  of  the  peace. 

§  294.  In  some  few  instances  the  Legislature  has  still  further  in-  §  235a 
terposed  for  the  purpose  of  avoiding  the  danger  of  variance,  and  has 
expressly  enacted,  that,  to  justify  a  conviction  for  certain  offences, 
the  name  of  the  injured  party  need  neither  be  alleged  nor  proved. 
For  instance,  if  a  person  be  indicted  for  any  offence  against  the  Act 
of  1861  relating  to  malicious  injuries  to  property,  it  will  suffice  to 
allege  and  prove  that  ho  did  the  act  charged  with  intent  to  injure  or 
defraud,  and  no  allegation  or  proof  is  necessary  that  the  prisoner 
intended  to  injure  or  defraud  any  particular  person.'  The  same 
law  prevails  in  all  prosecutions  "for  forging,  altering,  uttering, 
offering,  disposing  of,  or  putting  off,  any  instrument,"^  or  for  obtain- 
ing, or  attempting  to  obtain,  any  chattel,  money,  or  valuable  security 
by  false  pretences;^  and,  in  this  last  case  the  indictment  will  be  good, 
"  without  alleging  any  ownership  of  the  chattel,  money,  or  valuable 
security."*     So,  also,  in  all  indictments  for  stealing,  or  fraudulently 

soever,  any  partners,  joint  tenants,  parceners,  or  tenants  in  common,  it  shall 
be  sufficient  to  describe  them  in  manner  aforesaid  ;  and  whenever  in  any 
such  information  or  complaint,  or  the  proceedings  thereon,  it  shall  be 
necessary  to  describe  the  ownership  of  any  work  or  building  made,  maintained, 
or  repaired  at  theexpenseof  any  county,  riding,  division,  liberty,  city,  borough, 
or  place,  or  of  any  materials  for  the  making,  altering,  or  repairing  of  the  same, 
they  may  be  therein  described  as  the  property  of  the  inhabitants  of  such 
county,  riding,  division,  liberty,  city,  borough,  or  place  respectively;  and  all 
goods  provided  by  parish  officers  for  the  use  of  the  poor  may,  in  any  such  in- 
formation or  complaint,  or  the  proceedings  thereon,  be  described  as  the  goods 
of  the  churchwardens  and  overseers  of  the  poor  of  the  parish,  or  of  the  over- 
seers of  the  poor  of  the  township  or  hamlet,  or  of  the  guardians  of  the  poor  of 
the  union  to  which  the  same  belong,  without  naming  any  of  them;  and  all 
materials  and  tools  provided  for  the  repair  of  highways,  at  the  expense  of 
parishes  or  other  districts  in  which  such  highways  may  be  situate,  may  be 
therein  described  as  the  property  of  the  surveyor  or  surveyors  of  such  high- 
ways respectively,  without  naming  him  or  them;  and  all  materials  or  tools 
provided  for  making  or  repairing  any  turnpike  roatls,  and  buildings,  gates, 
lamps,  boards,  stones,  posts,  fences,  or  other  things  erected  or  provided  for  the 
purpose  of  any  such  turnpike  road,  may  be  described  as  the  property  of  the 
commissioners  or  trustees  of  such  turnpike  road,  without  naming  them;  and 
all  property  of  the  commissioners  of  sewers  of  any  district  may  be  described 
as  the  property  of  such  commissioners,  Avithout  naming  them." 

1  24  &  25  v.,  c.  97,  ?  60.     SeeE.  v.  Newboult,  41  L.  J.,  M.  C.  63. 

*  24  &  25  v.,  c.  98,  ^  44. 

»  24  &  25  v.,  c.  96,  §  88.  *  24  &  25  V.,  c.  96,  §  88. 

(3153) 


288  DESCRIPTIVE  ALLEGATIONS  IN  ACTIONS.  [PART  II. 

destroying,  or  concealing  wills,'  or  for  stealing,  or  fraudulently 
taking,  or  maliciously  destroying,  records  or  legal  documents,"  or 
for  stealing  fixtures  attached  to  any  square,  street,  or  place  dedicated 
to  public  use  or  ornament,^  it  is  not  necessary  to  allege  that  "  the 
article  in  respect  of  which  the  ofifence  is  committed  is  the  property 
of  any  person. 

§  295.  The  name  of  the  prisoner  is  not  a  matter  of  essential  §  2.36 
description,  because  on  this  subject  the  prosecutor  may  have  no 
means  of  obtaining  correct  information.  If,  therefore,  the  prisoner's 
name  or  addition  be  wrongly  described,  or  if  the  addition  be  omitted, 
the  court  may  correct  the  error,  and  call  upon  the  prisoner  to  plead 
to  the  amended  indictment.* 

§  290.  The  rule  which  renders  it  necessary  to  prove  essentially    §  237 
descriptive  allegations  need  not,  in   this  place,  be  illustrated  with 
respect  to  civil  actions,  because  the  question  has    already  been  dis- 
cussed, while  examining  the  cases  that  have  been   decided  on  the 
Rules  authorising  amendments.'^ 


1  24  &  25  v.,  c.  96,  §  29.  ^  Id.  §  30.  ^  Id.  §  31. 

*  7  G.  4,  c.  64,  ^  19,  enacts,  that  "no  indictment  or  information  shall  be 
abated  by  reason  of  any  dilatory  plea  of  misnomer,  or  want  of  addition,  or  of 
wrong  addition  of  the  party  offering  such  plea,  if  the  court  shall  be  satisfied  by 
affidavit  or  otherwise  of  the  truth  of  such  plea;  but  in  such  case  the  court 
shall  forthwith  cause  the  indictment  or  information  to  be  amended  according 
to  the  truth,  and  shall  call  upon  such  party  to  plead  thereto,  and  shall  proceed 
as  if  no  such  dilatory  plea  had  been  pleaded.  See  R.  v.  Orchard,  8  C.  &  P. 
565,  where  a  woman  charged  with  the  murder  of  her  husband,  being  described 
as  "A.,  the  wife  of  B.  C,"  the  record  was  amended  by  inserting  the  word 
"widow"  instead  of  "wife,"  per  Ld.  Abinger. 

*  Ante,  I  227,  et  seq. 


(3154) 


CHAP.  II.]       EVIDENCE  MUST  BE  CONFINED  TO  POINTS  IN  ISSUE.         289 


CHAPTER  II. 

CONFINING  EVIDENCE  TO  POINTS  IN  ISSUE. 

§  298.  The  second  general  rule,  which  governs  the  production  of  ?  239 
testimony,  is,  that  the  evidence  must  be  confined  to  the  points  in 
issue.  This  rule  is  founded  upon  the  consideration  that,  since 
these  points  have  been  alone  selected  by  the  parties  in  their  pleading, 
as  those  on  which  they  are  mutually  willing  to  rest  the  fate  of  the 
cause,'  any  evidence  in  support  of  other  facts  which,  not  being  ex- 
pressly alleged,  ruust  be  assumed  to  have  no  existence,  or  not  being 
expressly  denied,  must  be  admitted  to  be  true,  would  be  obviously 
improper.  Thus,  where  to  an  action  of  contract  the  defendant 
pleaded  the  statute  of  limitations,  to  which  there  was  a  replication 
that  he  did  promise  within  six  years,  and  issue  thereon,  the  plaintiff 
was  not  allowed  to  prove  that  the  action  was  grounded  on  a  fraudu- 
lent receipt  of  money  by  the  defendant,  and  that  the  fraud  was  first 
discovered  within  six  years  from  the  commencement  of  the  suit."  So, 
where  in  covenant,  the  breach  assigned  was  that  the  defendant  had 
not  used  the  plaintiff's  farm  in  a  husbandlike  manner,  but  had  com- 
mitted waste,  evidence  of  bad  husbandry  not  amounting  to  waste 
was  rejected.^  Again,  in  an  action  of  defamation,  where  the  issues 
raised  by  the  pleas  of  justification  were  whether  the  plaintiff's 
scholars  were  ill  fed,  badly  lodged,  and  covered  with  vermin,  the 
defendant's  counsel  was  not  permitted  to  put  any  questions  to  the 
witnesses,  with  the  view  of  showing  that  the  boys  were  also  badly 
educated  ;*  and  in  another  action  of  the  same  kind,  where  the  de- 
fendant had  only  pleaded  the  general  issue.  Lord  Ellenborough 
would  not  allow  the  plaintiff  to  prove  that  the  assertions  contained 
in  the  libel  were  false.     "  There  is  no  plea  of  justification  on  the 


1  Steph.  PI.  115. 

2  Clark  V.  Hougham,  2  B.  &  C.  149. 
'  Harris  v.  Mantle,  3  T.  R.  307. 

*  Boldron  v.  Widdows,  1  C.  &  P.  65. 

19   LAW  OF  EVID. — v.  I.  (3155) 


290  NEW  RULES  OF  PLEADING — THEIR  OBJECTS.  [PAET  II. 

record,"  said  bis  Lordship,  "and,  therefore,  I  can   no  more  hear  a 
falsification  on  one  side,  than  a  justification  on  the  other.'" 


§  299.  The  cases  just  cited  in  illustration  of  this  rule  have  been  ?  240 
selected  at  hazard  ;  but  in  order  to  obtain  practical  information  on 
this  important  subject,  it  may  be  advisable  to  examine  at  some 
length  the  rtiles  of  pleading,  together  with  the  leading  decisions 
explanatory  of  their  operation."  These  rules,  which  are  principally 
embodied  in  Order  XIX.  of  the  Rules  of  the  Supreme  Court,  1883, 
and  which  came  into  force  on  the  24th  of  October  in  that  year,  are 
intended,  — like  those  which  they  supersede, — to  effect  three  material 
objects:  first,  to  make  each  party  acquainted  with  the  intended  case 
of  his  opponent,  and  thus  to  prevent  either  side  from  being  taken 
by  surprise  at  the  trial ;  secondly,  to  save  the  expense  of  collecting 
.iinnecessary  evidence  ;  and  thirdly,  to  bring  legal  defences  more 
prominently  forward  on  the  face  of  the  record.^ 

§  300.  With  the  view  of  attaining  these  objects  the  rules  provide, 
in  general  terms,  that  all  pleadings  shall  henceforth  consist:  first,  of 
a  statement  of  claim,  and  of  the  relief  or  remedy  sought;*  next,  of 
a  defence,  set-off,  or  counter  claim  ;^  thirdly,  of  a  reply,**  if  any,  and 
lastly,  of  a  joinder  of  issue  on  the  one  side  or  the  other.^  They 
further  provide,  that  "such  statements  shall  be  as  brief  as  the 
nature  of  the  case  will  admit,"^  and  that  "every  pleading  shall 
contain,  and  contain  only,  a  statement  in  a  summary  form  of  the 
material  facts  on  which  the  party  pleading  relies,  but  not  the  em- 
dence  by  which  they  are  to  be  proved.""  For  example,  if  an  agree- 
ment be  alleged  in  any  pleading,  it  is  not  sufficient  to  aver  generally 

>  Stuart  ?;.  Lovell,  2  Stark.  R.  94  •  Cornwall  v.  Eicliarclson,  Ry.  &  M.  305. 

^  Most  of  the  cases  referred  to  in  the  following  observations  were  decided 
with  re-spect  to  the  old  rules  of  pleading;  but,  that  fact  being  borne  in  mind, 
they  will  serve  to  illustrate  the  present  rules. 

^  See  Isaac  v.  Farrer,  1  M.  &  W.  70,  per  Ld.  Abinger ;  4  DoavI.  755, 
S.  C. ;  J3arnett  r.  Glossop,  1  Bing.  N.  C.  636,  fi.37,  per  Park  and  Bosanquet, 
Js. ;  3  Dowl.  625,  S.  C. ;  Gntsole  v.  Mathers,  1  M.  &  W.  502,  503,  per  Ld. 
Abinger.  *  Ord.  XIX.,  R.  2.  ^  Id.  «  Id. 

'  Ord.  XIX.,  R.  18.  See  post,  ?  304,  also  ?  829,  and  Ord.  XXVII.,  R.  13, 
there  cited.  »  R.  2. 

^R.  4.  See  Heap  v.  Marris,  L.  R.,  2  Q.  B.  D.  630;  46  L.  J.,  Q.  B.  761, 
S.  C;  Philipps  v.  Philipps,  48  L.  J.,  Q.  B.,  135,  per  Ct.  of  App.;  L.  R.,  4 
Q.  B.  D.  127,  S.  C. 

(3156) 


CHAP.  II.  ]        FACTS  NOT  DENIED  IN  PLEADING — ADMITTED.  201 

its  existence,  and  to  state  its  effect,  but  the  party  relying  on  it 
should  state  whether  it  be  in  -writing,  or  by  parol,  or  the  result  of  a 
series  of  documents.'  In  the  case  of  Millington  n.  Loring"  the 
meaning  of  the  phrase  "material  facts  "  was  much  discussed,  the 
Divisional  Court  holding  that  it  should  be  confined  to  such  matters 
as  are  necessary  to  establish  the  cause  of  action  or  the  defence,  but 
the  Court  of  Appeal  deciding,  that  the  words  will  include  any  facts 
which  the  party  pleading  is  entitled  to  prove  at  the  trial.  Thus,  in 
an  action  for  breach  of  promise  of  marriage,  the  plaintiff  may  allege 
in  her  statement  of  claim  her  consequent  seduction  or  infection,  if 
any,  such  averments  being  regarded  in  the  light  of  important  matters 
of  aggravation.^ 


§  301.  In  addition  to  these  cardinal  propositions,  twelve  other 
pleading  rules  may  here  be  cited  as  having  a  material  bearing  on 
the  Law  of  Evidence.  First  comes  Rule  13  of  Order  XIX.,  which 
provides  that  "  every  allegation  of  fact  in  any  pleading,  not  being  a 
petition  or  summons,  if  not  denied  specifically  or  by  necessary 
implication,  or  stated  to  be  not  admitted  in  the  pleading  of  the 
opposite  party,  shall  be  taken  to  be  admitted,*  except  as  against 
an  infant,  lunatic,  or  person  of  unsound  mind  not  so  found  by 
inquisition."  Under  Rule  14,  "  any  condition  precedent,  the 
performance  or  occurrence  of  which  is  intended  to  be  contested, 
shall  be  distinctly  specified  in  his  pleading  by  the  plantiff  or 
defendant,  as  the  case  may  be  ;  and,  subject  thereto,  an  averment 
of  the  performance  or  occurrence  of  all  conditions  precedent  neces- 
sary for  the  case  of  the  plaintiff  or  defendant  shall  be  implied  in 
his  pleading."  Rule"  15  next  provides,  that  "the  defendant  or 
plaintiff,  as  the  case  may  be,  must  raise  by  his  pleading  all  matters 
which  show  the  action  or  counter-claim  not  to  be  maintainable,  or 


'  TurquancI  and  the  Capital  and  Counties  Bk.  v.  Fearon,  48  L.  J.,  Q.  B.  703, 
per  Ct.  of  App. 

''  L.  R.,  6  Q.  B.  D.  190  ;  50  L.  J.,  Q.  B    214,  S.  C. 

■•'  Id. 

*  See  Tildesley  v.  Harper,  48  L.  J.,  Ch.  495,  per  Ct.  of  App.,  overruling 
S.  C.  L.  R.,  7Ch.  D.  403,  per  Fry,  J.;  Harris  v.  Gamble,  L.  R.,  7  Ch.  D. 
877,  per  Fry,  J.;  47  L.  J.,  Ch.  273,  S.  C;  Rutter  v.  Tregent,  48  L.  J.,  Ch. 
791;  L.  R.,  12  Ch.  D.  758,  S.  C. 

(3157) 


292  AMENDMENTS — SPECIFIC  DENIALS.  [PART  II. 

that  the  transaction  is  either  void  or  voidable  in  point  of  law,'  and 
all  snch  grounds  of  defence  or  reply,  as  the  case  may  be,  as  if  not 
raised  would  be  likely  to  take  the  opposite  party  by  surprise,  or 
would  raise  issues  of  fact  not  arising  out  of  the  preceding  pleadings, 
as,  for  instance,  fraud,"  the  Statute  of  Limitations,  release,  pay- 
ment, performance,  facts  showing  illegality  either  by  statute  or 
common  law,  or  Statute  of  Frauds."  According  to  Rule  16,  "  No 
pleading,  not  being  a  petition  or  summons,  shall, — except  by  way 
of  amendment,^ — raise  any  new  ground  of  claim,  or  contain  any 
allegation  of  fact  inconsistent  with  the  previous  pleadings  of  the 
party  pleading  the  same." 

§  302.  By  virtue  of  Rule  17  "  it  shall  not  be  sufficient  for  a 
defendant  in  his  statement  of  defence  to  deny  generally  ihe  grounds 
alleged  by  the  statement  of  claim,*  or  for  a  plaintiff  in  his  reply  to 
deny  generally  the  grounds  alleged  in  a  defence  by  way  of  counter- 
claim, but  each  party  must  deal  specifically  with  each  allegation  of 
fact  of  which  he  does  not  admit  the  truth,  except  damages." 
Rule  18  provides,  that,  "  subject  to  the  last  preceding  rule,  the 
plaintiff  by  his  reply  may  join  issue  upon  the  defence,  and  each 
party  in  his  pleading,  if  any,  subsequent  to  reply,  may  join  issue 
upon  the  previous  pleading.'^     Such  joinder  of  issue  shall  operate  as 

^  An  exceiition  to  this  proposition  is  contained  in  Orel.  XXI.,  E.  21,  which 
provides,  that  '"no  defendant  in  an  action  for  the  recovery  of  land,  Avho  is 
in  possession  by  himself  or  his  tenant,  need  plead  his  tille,  unless  his  defence 
depends  on  an  equitable  estate  or  right,  or  he  claims  relief  upon  any  equit- 
able ground  against  any  right  or  title  asserted  by  the  plaintiff."  It  will 
suffice  in  such  case  to  state  that  he  is  in  possession,  and  .such  statement  will 
put  the  plaintiff  to  the  proof  of  his  case  ;  see  Danford  v.  M'Anulty,  50  L.  J., 
Q.  B.  294,  per  Ct.  of  App. ;  L.  R.,  G  Q.  B.  D.  G45,  S.  C. ;  L.  R.,  8  App.  Cas. 
456,  S.  C,  per  Dom.  Proc;  and  52  L.  J.,  Q.  B.  652. 

2  See  post,  §  306. 

^  See,  also,  Ord.  XXIII.,  R.  6,  which  provides,  that  ^'' no  new  assignment  shall 
be  necessary  or  used.  But  everything  which  was  formerly  alleged  by  way  of 
new  assignment  may  hereafter  be  introduced  by  amendment  of  the  statement 
of  claim,  or  by  way  of  reply.     See  Earp  v.    Henderson,  L.   R.,   3  Ch.  D.    254; 

45  L.  J.,  Ch.  738,  S.  C,  as  explained  by  Hall  v.  Eve,   L.   R.,   4   Ch.   D.  341  ; 

46  L.  J.  Ch.  146,  S.  C. 

*  See  Harris  v.  Gamble,  L.  R.  7  Ch  D.  877,  per  Fry,  J.  ;  47  L.  J.,  Ch.  273, 
S.  C;  Rutter  w.  Tregent,  48  L.  .1.,  Ch.  791,  L.  R.  12  Ch.  D   75S,  S.  C. 

^  As  to  the  effect  of  not  delivering  a  reply,  or  any  subsequent  pleading 
within  the  proper  period,  see  Ord.  XXVll.,  R.  13,  cited  post,  I  829. 

(3158) 


CHAP.  11.]  GENERAL   ISSUE    PRACTICALLY    ABOLISHED.  293 

a  denial  of  every  material  allegation  of  facts  in  the  pleading  upon 
which  issue  is  joined,  but  it  may  except  any  facts  which  the  party 
may  be  willing  to  admit,  and  shall  then  operate  as  a  denial  of  the 
facts  not  so  admitted." 


§  303.  It  will  be  noticed  that  in  their  practical  efifect  these  last 
two  rales  almost  entirely'  do  away  with  what  used  to  be  termed  by 
Special  Pleaders  "  the  General  Issue,"  so  far  as  the  statement  of 
defence  is  concerned,  though, — at  the  option  of  the  parties, — they 
retain  in  the  reply  or  any  subsequent  loleading  that  sweeping  form 
of  traverse.  Their  operation  on  the  plea  will  be  best  understood  by 
referring  to  the  former  law  on  that  subject,  and  pointing  out  how  it 
differs  from  the  present  practice.  Under  the  old  forms  of  pleading, 
whenever  the  defendant  could  show  that  in  fact  no  debt  ever  existed 
before  action  brought,  he  might  do  so  under  the  plea  of  "never  in- 
debted." For  instance,  if  the  action  were  for  goods  sold  and  de- 
livered, he  might  defend  himself  under  that  plea,  by  proving  that 
they  were  paid  for  by  ready  money;'  that  they  were  sold  on  credit, 
which  was  unexpired  when  the  action  was  commenced;^  that  they 
were  bought  through  an  agent,  and  that  before  the  expiration  of  the 
credit,  the  defendant  had  remitted  the  price  of  the  goods  to  the 
agent;*  that  they  were  sold' under  a  condition,  that  if  they  did  not 
answer  their  purpose  nothing  should  be  paid  for  them,  and  that  in 
fact  they  did  not  answer  their  purpose;'^  that  they  were  sold  under 
any  special  agreement,  which  had  not  been  performed;*^  that  they 
were  delivered  under  a  contract  of  barter;'  that  the  goods  delivered 


1  See  post,  I  311. 

"^  Bussey  v.  Barnett,  9  M.  &  W.  312.  But  see  Littlechild  v.  Banks,  7  Q.  B. 
739. 

■''  Broomfield  v.  Smith,  1  ]\I.  &  W.  542,  overruling  Edmonds  v.  Harris,  2  A. 
&  E.  414 ;  4  N.  &  M.  182,  S.  C. 

*  Smyth  V.  Anderson.  7  Com.  B.  21. 

^  Grounsell  v.  Lamb,  1  M.  &  W.  352.  See  Lamond  v.  Davall,  9  Q.  B. 
1030. 

®  Broomfield  v.  Smith,  1  M.  &  W.  543,  per  Ld.  Abinger  ;  Garej'  v.  Pike,  10 
A.  &  E.  512;  2  P.  &  D.  427,  S.  C.  ;  Hayselden  v.  Stall',  5  A.  &  E.  153;  6  N. 
&  M.  G59,  S.   C;  Mosely  v.  M'Mullen,  6  Ir,  Law  R.,  N.  S.  09. 

'  Harrison  v.  Luke,  14  M.  &  W.  139,  Smith  v.  Winter,  12  Com.  B.  487; 
Bracegirdle  v.  Hinks,  9  Ex.  R.  36\ 

(3159) 


294  GENERAL   ISSUE   UNDER   OLD   PLEADING  RULES.       [PART  II. 

did  not  answer  the  description  of  the  articles  which  the  vendor  pro- 
fessed to  sell ;'  or  that  they  turned  out  to  be  utterly  useless,^ 


§  303a.  So,  in  an  action  for  use  and  occupation,  the  defence  that 
the  premises  were  held  under  a  demise  at  a  rent  payable  quarterly,  and 
that  before  the  rent  became  due,  either  the  plaintiff,^  or  his  superior 
landlord/  evicted  the  defendant,  or  the  former  accepted  a  surrender 
of  a  term  from  him,  might  have  been  given  in  evidence  under  the 
"general  issue."  The  defendant  might,  also, '^  have  proved  under 
the  same  plea  that,  before  the  rent  was  due,  he  received  notice  from  a 
mortgagee  of  the  premises  to  pay  the  rent  to  him;''  but  if  the  mort- 
gagee's claim  had  not  been  made  until  after  the  rent  had  accrued, 
and  the  plaintifP's  right  of  action  had  consequently  vested,  the 
demand  would  have  furnished  no  defence.'  In  a  similar  action,  the 
defendant  might  probably  have  shown,  under  the  plea  of  never  in- 
debted, that  the  premises  were  uninhabitable,^  when  such  a  defence 
was  a  bar  to  the  action;"  or  that  there  had  been  no  actual  entry  by 
him;'"  or  that  his  occupation  had  not  been  by  the  sufferance  of  the 
plaintiff;"  or  that  he  had  originally  occupied  the  premises  by  the 
permission  of  a  prior  owner,  to  whom  he  had  paid  all  arrears  of  rent 

^  Gompertz  r.  Bartlett,  2  E.  &  B.  849.  There  an  unstamped  bill  of  exchange, 
purporting  to  be  a  foreign  bill,  had  been  sold,  but  on  proof  that  it  was  really- 
drawn  in  London,  the  vendee  was  held  entitled  to  recover  back  the  price  of  the 
bill,  on  the  ground  of  a  failure  of  consideration.  See  now  33  &  34  V.,  c.  97,  § 
52,  cited  ante,  |  72. 

2  Cousins  V.  Paddon,  2  C.  M.  &  R.  457;  4  Dowl.  488;  5  Tyr.  535,  S.  C, 
recognised  by  Ld.  Denman  in  Hayselden  v.  Staff,  5  A.  &  E.  162;  Baillie  v.  Kell, 
4  Bing.  N.  C.  638;  6  Scott,  379,  S.  C;  Chapel  v.  Hicks,  2  C.  &  M.  214i  Allen 
V.  Cameron,  3  Tyr.  907.     These  cases  overrule  Roffey  r.  Smith,  6  C.  &  P.  662. 

*  Prentice  v.  Elliott,  5  M.  &  VV.  60G;  Dodd  v.  Acklom,  6  M.  &  Gr.  672. 

*  Selby  V.  Browne,  7  Q.  B.  620. 

*  See  Hickman  v.  Machin,  4  H.  &  N.  716. 

«  Waddilove.  r.  Barnett.  2  Bing.  N.  C.  538;  2  Scott,  763;  4  Dowl.  347, 
S.  C,  recognised  in  Hayselden  v.  Staff,  5  A.  &  E.  159.     See  ante,  §  102. 

'  Wilton  V.  Dunn,  17  Q.  B.  249,  overruling  on  this  point  Waddilove  v. 
Barnett,  2  Bing.  N.  C.  538,  and  Pope  v.  Biggs,  9  B.  &  C.  245.  See  Hickman 
V.  Machin,  4  H.  &  N.  716. 

8  Smith  V.  Marrable,  11  M.  &  W.  5,  8,  9,  per  Parke,  B. 

"  See  same   case,  and  compare  it  with  Sutton   v.  Temple,  12   M.  &  W.  52; 
Hart  V.  Windsor,  id.  69;  Gott  v.  Gandy,  2  E.  &  B.  845;  Murray  v.  Mace,  I.  R.,  ^ 
8  C.  L.  396;  and  Wilson  v.  Finch  Hatton,  L.  R.,  2  Ex.  D.  336. 

'"Lowe  V.  Ross,  5  Ex.  R.  553;  overruling  a  dictim  of  Tindal,  C.  J.,  in 
Atkins  V.  Humphrey,  2  Com.  B.,  654.  "  Powell  v.  Hibbert,  15  Q.  B.  129. 

(3160) 


CHAP,  11.]  REPLIES EVASIVE  PLEADINGS.  295 

without  having  received  any  notice  of  an  assignment  to  the  plaintiff;' 
or  that  he  had  been  let  into  possession  by  the  plaintiff,  under  a  con- 
tract to  purchase,  which  had  contained  no  stipulation  as  to  the 
terms  of  occupancy,  and  which  afterwai'ds  had  gone  off  in  conse- 
quance  of  the  plaintiff's  inability  to  make  out  a  good  title -j^  or,  in 
short,  the  defendant  might  have  given  in  evidence  any  other  fact, 
which  would  have  proved  that  he  had  never  so  occupied  the  premises 
as  to  render  him  liable,  in  point  of  law,  to  the  payment  of  rent.^ 
Now,  all  'these  several  defences  require  to  be  specifically  set  out  in 
the  statement  of  defence. 

§  304.  In  stating,  as  is  done  in  Rule  18,  that  the  plaintiff  "  by 
his  reply  may  join  issue  upon  the  defence,"  ^  it  is  not  intended  that 
he  must  take  that  course;  but,  —  excepting  in  a  case  where,  under  the 
old  sytem  of  common  law  pleading,  a  new  assignment  would  have 
been  necessary,^ — he  may  still,  instead  of  amending  his  claim  under 
Order  XXVIII.,  either  traverse  the  allegations  in  the  defence  gene- 
rally or  specially,  or  confess  and  avoid  them,  or  unite  in  one  reply 
those  several  answers.® 

§  305.  Under  Rule  19,  "when  a  party  in  any  pleading  denies  an 
allegation  of  fact  in  the  previous  pleading  of  the  opposite  party,  he 
must  not  do  so  evasively,  but  answer  the  point  of  substance.  Thus, 
if  it  be  allege  1  that  he  received  a  certain  sum  of  money,  it  shall  not 
be  sufficient  to  deny  that  he  received  that  particular  amount,  but  he 
must  deny  that  he  received  that  sum  or  any  part  thereof,  or  else  set 
out  how  much  he  received.  And  if  an  allegation  is  made  with 
divers  circumstances,  it  shall  not  be  sufficient  to  deny  it  along  with 
those  circumstances."  For,  in  interpreting  this  rule,  as  well  as 
those  which  provide  that  facts  not  denied  must  be  taken  as 
admitted,^  and  that  facts   denied  must  be  specifically  denied,^  the 

1  Cook  v.  Moylan,  1  Ex.  R.  67;  5  Dowl.  &  L   101,  S.  C. 

^  Winterbottom  v.  Ingram,  7  Q.  B.  611.  See  Hall  v.  Vanghan,  6  Price.  157; 
Hearn  v.  Tomlin,  Pea.  R.  192,  per  Ld.  Kenyon;  Howard  v.  Shaw,  8  M.  &  W. 
118;  Kirtland  v.  Pownsett,  2  Taunt.   145;  Markey  v.  Coote,  I.  R.,  10  C.  L.  149. 

^  Smith  V.  Marrable,  11  M.  &  W.  8,  9,  per  Parke,   B. 

*  See  ante,  §  302.  ^  See  ante,  p.  202,  n.  I 

«  Hall  V.  Eve,  L.  R.,  4  Ch.  D.  341,  per  Ct.  of  App. ;  46  L.  J.,  Ch.  145,  S.  C. 
^  See  Rule  13,  cited  ante,  I  301. 

*  See  Rule  17,  cited  ante,  §  302.  See  Green  v.  Sevin,  L.  R.,  13  Ch.  D.  589, 
per  Fry,  J. 

(3161) 


296  ISSUES  TO  BE  DEFINITE  AND  DISTINCT.  [PART  II. 

courts  vory  properly  will  enforce  a  strict  observance  of  the  language 
used.  That  language  was  intended  to  be  construed  strictly,  in  order 
to  enable  each  party  to  know  what  the  real  issues  between  him  and 
his  opponent  are.  The  whole  meaning  of  the  system  is  to  narrow 
the  parties  to  definite  and  distinct  issues,  and  thereby  to  diminish 
expense  and  delay,  especially  as  regards  the  amount  of  oral  testi- 
mony required  on  either  side  at  the  trial.'  In  a  case  which  called 
forth  the  above  remarks  from  the  Master  of  the  Rolls,  the  plaintiff 
prayed  for  a  dissolution  of  partnership,  stating  that  he  and  the 
defendant  had  become  partners  under  a  parol  agreement,  and  that 
the  terms  of  the  arrangement  had  been  definitely  agreed  upon  at 
a  certain  interview.  The  defendant,  in  his  statement  of  defence, 
admitted  the  agreement,  but  denied  that  the  terms  had  been 
"  definitely  agreed  upon  as  alleged."  Sir  George  Jessel  held  that 
this  denial  was  evasive  within  the  meaning  of  the  rule.  "  The 
words  *  as  alleged,'  "  said  bis  Lordship,  "  mean  the  whole  allega- 
tions of  the  statement  of  claim,  not  of  the  particular  paragraph. 
I  cannot  tell  from  his  pleading  what  part  of  the  plaintiff's  allega- 
tions the  defendant  means  to  deny.  He  may  mean  to  deny  that 
the  terms  were  definitely  agreed  upon  at  the  interview  of  the  17th 
of  September,  although  they  were  definitely  agreed  upon  on  some 
other  day,  or  he  may  have  some  peculiar  view  as  to  the  meaning  of 
the  word  'definitely.'  He  may  not  be  able  to  say  that  the  terms 
were  not  arranged  as  agreed  upon,  but  he  may  take  the  word 
'  definitely '  because  he  thinks  it  may  give  him  some  mode  of 
escape.  I  cannot  make  out  what  he  means.  He  is  bound,  if  he 
intends  to  deny,  to  deny  that  any  terms  of  arrangement  have  ever 
been  come  to,  if  that  is  what  he  means.  If  he  does  not  mean  that, 
he  should  deny  that  any  terms  of  arrangement  were  ever  come  to 
except  the  following,  and  then  state  what  those  terms  were;  other- 
wise, there  is  no  specific  denial.'.'  ^ 


^  Thorp  r.  Holdsworth,  45  L,  J.,  Ch.  406,  408,  per  Jessel,  M.R  ;  L.  E.,  3  Ch. 
D.  637,  S.  C;  Byrd  v.  Nunn,  L.  R.,  Ch.  D.  781,  per  Fry,  J.;  S.  C.  aff.  by  Ct. 
of  App.,  47  L.  J.,  Ch.  I;  and  L.  R.,  7  Ch.  D.  284;  Tiklesley  v.  Harper,  48  L. 
J.,  Ch.  49.5,  per  Ct.  of  App.,  overruling  S.  C,  L.  R.,  7  Ch.  D.  403,  per  Fry.  J.; 
Collete  V.  Goode,  L.  R.,  7  Ch.  D.  842,  per  Fry,  J.;  47  L.  J.,  Ch.  370,  S.  C. 

2  Thorp  V.  Holdsworth,  45  L.  J.,  Ch.   408,  409. 

(3162) 


CHAP.  II.]        TRAVERSE  OF   REPRESENTATIVE    CHARACTER.  297 

§  306.  Eule  20  provides,  that  "  when  a  contract,  promise,  or 
agreement  is  alleged  in  any  pleading,  a  bare  denial  of  the  same  by 
the  opposite  party  shall  be  construed  only  as  a  denial  in  fact  of  the 
express  contract,  promise,  or  agreement  alleged,  or  of  the  matters 
of  fact  fi'om  which  the  same  may  be  implied  by  law,  and  not  as  a 
denial  of  the  legality  or  sufficiency  in  law,  of  such  contract,  pro- 
mise, or  agreement,  whether  with  reference  to  the  Statute  of 
Frauds  or  otherwise."  The  effect  of  this  last  rule  is,  that,  when- 
ever a  party  intends  to  rely  on  the  illegality  or  insufficiency  in  law 
of  any  contract,  whether  with  reference  to  the  Statute  of  Frauds, 
or  otherwise,  he  must  specially  j^lead  such  illegality  or  insufficiency, 
and  it  will  not  be  sufficient  to  traverse  allegations  made  by  his 
opponent  in  anticipation  of  objections  to  the  contract  upon  such 
grounds.'  Neither  can  a  defendant  avail  himself  of  the  Statute  of 
Frauds  by  simply  raising  in  general  terms  by  his  pleading  a  point 
of  law  ^  (such  being  the  new  fangled  substitute  for  the  old  general 
demurers),^  nor  will  it  suffice  for  him  to  state  generally  that  ho 
relies  on  a  statute,  as,  for  instance,  the  Statute  of  Frauds,  but  the 
facts  which  make  the  statute  applicable  must  also  distinctly  appear 
on  the  pleadings.* 

§  307.  Again,  Eule  5  of  Order  XXI.,  provides,  that  "if  either 
party  wishes  to  deny  the  right  of  any  other  party  to  claim  as 
executor,  or  as  trustee,  whether  in  bankruptcy  or  otherwise,  or  in 
any  representative  or  other  alleged  capacity,  or  the  alleged  constitu- 
tion of  any  partnership  firm,  he  shall  deny  the   same  specifically." 

§  308.  In  some  few  instances  it  will  be  difficult  to  reconcile  the 
language  employed  in  this  last  rule,  and  also  that  used  in  Rule  13 
of  Order  XIX, ^  with  the  special  enactments  contained  in  several 
Acts  of  Parliament.  For  example,  if  an  action  be  brought  to  recover 
a  doctor's  bill,  and  the  plaintiff  allege  in  his  statement  of  claim  that 


'  Clarke  v.  Callow,  46  L.  J.,  Q.  B.  53,  per  Ct.  of  App. 
2  Futcher  v.  Futcher,  50  L.  J.,  Ch.  735,  per  Fry,  J. 
^Ord.  XXV.,  RR.  1,  2. 

*  Pullen  V.  Snelus,  48  L.  J.,  C.  P.  394.  *  Cited  ante,  I  301. 

(3163) 


298  WANT  OF  STAMP — OF  JURISDICTION.  [PART  II. 

he  is  a  "  legally  qualified  medical  practitioner,"  '  what  will  be  the 
effect  of  the  defendant  omitting  to  traverse  that  special  allegation? 
According  to  the  New  Rules,  this  amounts  to  an  admission  of  the 
fact  not  traversed.  But  then,  what  effect  is  to  be  given  to  "  The 
Medical  Act"  "  of  1858,  which, — in  order  to  diminish  the  public 
mischief  caused  by  quackery, — expressly  enacts,  in  §  32,  that  "no 
person  shall  be  entitled  to  recover  any  charge  in  any  court  of  law  for 
any  medical  or  surgical  advice,  attendance,  or  for  the  performance 
of  any  operation,  or  for  any  medicine  which  he  shall  have  both  pre- 
scribed and  supplied,  unless  he  shall  prove  upon  the  trial  that  he 
is  registered  under  the  Act  ?"  Will  it  be  open  to  the  defendant 
to  contend,  that  an  admission  is  not  strictly  proof,  but  only  a 
substitute  for  proof,  and  that  in  spite  of  his  defective  pleading,  the 
court  must  take  care  that  the  registration  of  the  plaintiff  be  duly 
proved  at  the  trial?  If  this  reasoning  be  not  recognised,  the  law, 
as  it  exists,  is  exposed  to  the  absurd  anomaly  that  a  quack  doctor, 
who  must  inevitably  be  nonsuited  in  any  county  court,  may  have  a 
fair  chance  of  recovering  his  charges,  if  he  elects  to  sue  in  the 
High  Court. 


§  309.  Again,  can  the  objection  that  an  instrument  is  wof  sfa?>y^d 
or  is  insufficiently  stamped,  be  taken  at  the  trial  by  a  party,  who 
has  not  relied  on  that  point  in  his  pleading?  And  if  he  can  do  so 
on  ordinary  occasions,  is  the  same  course  open  to  him,  when  his 
opponent  has  affirmatively  alleged  in  his  pleading  that  the  document 
in  question  has  been  duly  stamped  ?  If  either  of  these  queries  be 
answered  in  the  negative, — and  if  the  New  Rules  are  strictly  inter- 
preted they  must  be  so  answered, — then  arises  the  following 
question  ;  what  steps  must  be  taken  either  by  the  presiding  judge, 
or  by  the  ministerial  officer  of  the  court,  so  as  to  protect  the 
interests  of  the  Revenue,  where  the  fiscal  rights  of  the  Crown  have 
been  obviously  set  at  nought  by  one  or  both  of  the  litigants  ?  ^ 

§  310.  The  question  how  far  a  defendant  can  avail  himself  of    z  0^7 


.  1  See  21  &  22  v.,  c.  90,  ?  34.  ^  21  &  22  V.,  c.  90. 

3  See  Field  v.  Woods,  7  A.  &  E.  114;  2  N.  &  P.  117,  S.  C;    Dawson  v.  Mac- 
donald,  2  M.  &  W.  26  ;  M'Dowall  v.  Lyster,  id.  52.     See,  also,  post,  ^  397. 

(3164) 


CHAP  II.  J        PLEA  OF  NOT  GUILTY  BY  STATUE.  299 

want  of  jurisdiction  in  the  court  without  raising  that  defence  by 
means  of  a  special  plea,  does  not  seem  to  have  been  set  at  rest  by 
the  New  Rules  of  Pleading,  and,  independent  of  those  rules,  has  been 
left  in  an  iinsatisfactory  state  by  the  case  of  Spooner  r.  Juddow/ 
There  the  Judicial  Committee  of  the  Privy  Council  decided,  that 
when  the  facts  ousting  the  jurisdiction  are  brought  by  the  plaintiff 
himself  to  the  notice  of  the  court,  the  mere  omission  of  the  de- 
fendant to  plead  specially  will  not  give  the  cotirt  jurisdiction  over 
the  suit,  but  it  will  be  bound,  whatever  be  the  nature  of  the  issues 
raised,  either  to  nonsuit  the  plaintiff,  or  to  direct  a  verdict  for  the 
defendant.  The  court,  however,  declined  to  state  what  would  be  the 
law,  if  the  plaintifP  were  to  close  his  case  without  betraying  the  want 
of  jurisdiction,  and  the  defendant  were  then,  without  any  special 
plea  raising  the  point,  to  offer  evidence  of  facts  with  a  view  of  show- 
ing that  the  cause  of  action  was  ultra  vires. 


§  311.  We  have  been  hitherto  discussing  the  operation  of  the  g  293 
pleading  rules  in  limiting  and  defining  the  amount  of  evidence 
admissible  in  ordinary  actions;  but  it  must  be  carefully  borne  in 
mind,  that  the  numerous  class  of  cases,  in  which  the  defendant  is 
expressly  empowered  to  plead  ^^  Not  Guilty  by  statute,''^  and  to  give 
special  matter  in  evidence  under  such  plea,  is  not  affected  by  these 
rules  further  than  this,  that  the  party  who  intends  so  to  plead 
cannot  "  plead  any  other  defence  to  the  same  cause  of  action  with- 
out the  leave  of  the  court  or  a  judge."  ^  The  pleader,  too,  must 
"  insert  in  the  margin  of  his  pleading  the  words  '  By  Statute, '  to- 
gether with  the  year  of  the  reign  in  which  the  Act  of  Parliament 
on  which  he  relies,  was  passed,  and  also  the  chapter  and  section  of 
such  Act,  and  shall  specify  whether  such  Act  is  public  or  other- 
wise ;  otherwise  such  defence  shall  be  taken  not  to  have  been 
pleaded  by  virtue  of  any  Act  of  Parliament."  ^ 

§  312.  It   is  extremely  difficult  to  lay   down,   as    an    abstract    g  294 
proposition  of  law,  what  shall  amount  to  an  acting  in  pursuance  of 
a  statute,  or  in  execution  of  an  office,  so  as  to  entitle  a  defendant  to 


1  6  Moo.  P.  C.  R.  257. 

2  Ord.  XIX.,  R.  12.  ^  Qrd.  XXI.,  R.  19. 

(3165) 


300  PLEA    OF   NOT    GUILTY    BY    STATUTE.  [PAKT   II. 

give  special  matter  in  evidence  under  the  general  issue,  to  rely  on 
the  want  of  notice  of  action,  '  or  on  the  fact  that  he  has  tendered 
amends,  or  otherwise  to  claim  any  particular  protection  which 
may  be  afforded  by  Act  of  Parliament;  but  thus  much  may  be 
stated  with  safety,  that  if  a  party  believes,  bona  fide,  in  the 
existence  of  a  state  of  facts,-  which,  if  they  had  existed,  would 
have  afPorded  a  defence  to  the  action/  he  is, — without  reference  to 
the  reasonableness  of  such  belief,* — entitled  to  protection,  although 
he  may  have  proceeded  illegally  or  exceeded  his  jurisdiction.^ 
Statutes  of  this  kind  are  intended  for  the  protection  of  honest 
persons,  who  bona  fide  mean  to  discharge  their  duty  ;'^  and  the 
court  will,  consequently,  so  interpret  their  provisions,  as  to  save 
harmless  all  persons  who  act  illegally  under  the  reasonable  belief 

1  See  ArnolcU'.  Hamel,  9  Ex.  R.  404  ;  Kiiby  v.  Simpson,  23  L.  J.,  M.  C.  165; 
10  Ex.  R.  358,  S.  C.  In  this  last  case  it  was  held  that  a  magistrate  acting  in 
execution  of  his  office  is  entitled  by  11  &  12  V.,  c.  44,  ?  9,  to  notice  of  action, 
although  he  acts  maliciously  and  without  reasonable  and  probable  cause. 

^  If  there  are  no  facts  on  which  a  bona  fide  belief  can  reasonably  be 
founded,  the  protection  will  not  apply,  Agnew  v.  Jobson,  13  Cox,  023 ;  47 
L.  J.,  M.  C.  67,  S.  C. 

3  Hermann  v.  Seneschal,  32  L.  J.,  C.  P.  43;  13  Com.  B.,  N.  S.  392,  S.  C.  ; 
Heath  v.  Brewer,  15  Com.  B.,  N.  S.  803  ;  Midi.  Ry.  Co.  v.  Withington  Local 
Board,  L.  R..  11  Q.  B.  D.  788,  per  Ct.  of  App. ;  Roberts  v.  Orchard,  2  H.  & 
C.  109,  per  Ex.  Ch.;  33  L.  J.,  Ex.  05,  S.  C.  See  Downing  v.  Capel,  30  L.  J., 
M.  C.  97  ;  Selmes  v.  Judge,  0  Law  Rep.,  Q.  B.  724  ;  40  L.  J.,  Q.  B.  287,  S.  C. 
nom.  Judge  v.  Selmes. 

*  Chamberlains.  King,  6  Law  Rep.,  C.  P.  474  ;  S.  C.  nom.  Kingr.  Chamber- 
lain 40  L.  J.,  C.  P.  273.  Prior  to  this  decision,  it  was  thought  by  many  that 
the  belief  to  be  available,  must  have  rested  '"on  some  colour  of  reason."  See 
Cann  v.  Clipperton,  10  A.  &  E.  582  ;  Cook  v.  Leonard,  6  B.  &  C.  351  ;  9  D.  & 
,R.  339.  S.  C,  as  qualified  by  the  Ct.  of  Ex.  in  Jones  t).  Gooday,  9  M.  &  W.  743, 
745.  See,  also,  Kine  v.  Evershed,  10  Q.  B.  143;  Leete  v.  Hart,  3  Law  Rep., 
C.  P.  322 ;  Spooner  v.  Juddow,  0  Moo.  P.  C.  R.  283,  per  Ld.  Campbell  ;  Booth 
V.  Clive,  10  Com.  B.  827 ;  Read  v.  Coker,  13  Com.  B.  850 ;  Arnold  v.  Hamel, 
9  Ex.  R.  409  ;  Hermann  v.  Seneschal,  32  L.  J.,  C.  P.  43  ;  13  Com.  B.  N.  S. 
392,  S.  C. 

*  Hazeldine  v.  Grove.  3  Q.  B.  997,  1006,  1007  ;  3  G.  &  D.  210,  S.  C;  Spooner 
V.  Juddow,  0  Moo.  P.  C.  R.  257,  283 ;  Jones  v.  Gooday,  9  M.  (fe  W.  730,  743— 
740,  per  Parke  and  Alderson,  Bs. ;  Theobald  v.  Crichmore.  1  B.  &  A.  227,  229, 
230,  per  Ld.  Elleiiborongh,  and  Bavley,  J.  See,  further  Eliot  f.  Allen,  1  Com. 
B.  18  ;  Shatwell  r.  Hall,  10  M.  &  W.  523  ;  2  Dowl.  N.  S.  507,  S.  C. ;  Hopkins 
V.  Crowe,  4  A.  &  E.  774  ;  Lidster  v.  Borrow,  9  A.  &  E.  054  :  Bush  r.  Green, 
4  Bing.  N.  C.  41  ;  Smith  v.  Shaw.  10  B.  &  C,  277  :  5  M.  &  R.  225,  S.  C;  Davis 
V.  Curling,  8  Q.  B.  28r>  ;  Cox  r.  Rcid,  13  Q.  B.  558;  Thomas  v.  Stephenson, 
2  E.  &  B.  108;  Newton  v.  Ellis.  5  E.  &  B.  115  ;  Poulsum  v.  Thirst,  2  Law 
Rep.,  C.  P.  449;  30  L.  J.,  C.  P.  225,  S.  C. 

«  Per  Parke,  B.,  in  Jones  r.  Gooday,  9  M.  &  W.  743.  • 

(3100) 


CHAP.    II.]  PLEA  OF  NOT  GUILTY  BY  STATUTE.  301 

that  they  are  authorised  in  %vhat  they  do  by  Act  of  Parliament;  and 
this,  too,  whether  the  error  complained  of  has  been  committed  in 
respect  of  time,  place,  or  circumstance.^ 

§  313.  It  is  now  finally  determined  that,  under  the  plea  of  ^^  Not  ^  095 
Guilty  by  statute,''''  the  defendant  may  set  up  any  defence  that  could 
be  specially  pleaded,  whether  it  be  founded  wholly  or  partly  on 
the  statute,  or  be  merely  sustainable  at  common  law.^  Thus,  in 
an  action  for  an  excessive  distress,  such  a  plea  puts  in  issue,  not 
only  the  matter  of  justilication,  but  the  tenancy  and  the  owner- 
ship of  the  goods  ;^  and  if  a  plaintiff  sues  as  administrator,  the 
defendant,  who  has  thus  pleaded,  may  dispute  his  title  to  that 
character,*  The  natural  result  of  this  rule  is,  that  the  courts 
will  not,  in  general,  allow  the  defendant  to  plead  "  not  guilty  by 
statute  "  in  connexion  with  any  other  defence  ;  but  if  a  reasonable 
doubt  exists  as  to  whether  the  defendant,  in  regard  to  the  particular 
act  complained  of,  is  entitled  to  such  a  plea,  the  rule  will,  in  favour 
of  substantial  justice,  be  sometimes  relaxed.^ 

§  314.  The  statutes  enabling  persons,  who  act  in  pursuance  s  ogg 
thereof,  or  otherwise  in  execution  of  their  offices,  to  plead  not 
guilty,  and  to  give  special  matter  in  evidence  under  such  plea, 
are  still  extremely  numerous,  although  the  efPect  of  modern  legis- 
lation has  been  greatly  to  reduce  their  number.  For  instance, 
by  the  Act  of  5  &  G  V.,  c.  97,  §  3,  so  much  of  any  clause  or 
provision  in  any  Act  commonly  called  Public  local  and  personal, 
or  Local  and  personal,'  or  in  any  Act  of  a  local  and  personal 
nature,*^    whereby    any    party    was    entitled,    before    the    10th    of 


1  Hughes  V.  Buckland,  35  M.  &  W.  34G,  353,  354,  per  Tollock,  C.  B. ;  Horn 
V.  Thornborough,  3  Ex.  R.  846;  6  Dowl.  &  L.  651,  S.  C.  ' 

■'  Ross  V.  Clifton,  11  A.  &  E.  631;  1  G.  &  D.  72;  9  Dowl.  1033,  S.  C; 
Maund  v.  Monmouth  Can.  Co.,  C.  &  Marsh.  606,  608,  per  Cresswell,  J.,  stating 
the  general  ophiion  of  the  judges;  Fisher  v.  Thames  June.-  Ry.  Co.,  5  Dowl. 
773;  Hainc  v.  Davey,  4  A.  &  E.  892;  6  N.  &  M.  356,  S.  C. ;  Eagleton  t;. 
Gutteridge,  11  M.  &  W.  469,  per  Parke,  B. 

^  Williams  v.  Jones,  11  A.  &  E.  643. 

*  Tharpe  v.  Stallwood,  5  M.  &  Gr.  768,  per  Cresswell,  J. 

6  Langford  v.  Woods,  8  Scott,  N.  R.  369;  7  M.  &  Gr.  625,  S.  C. 

«  As  to  the  meaning  of  this  phrase,  see  Richards  v.   Easto,  15  M.  &  W.  244  ; 

(3167) 


302  PLEA  OF  NOT  GUILTY  BY  STATUTE.  [pART  II. 

August,  1842,  to  give  special  matter  in  evidence  under  the  general 
issue,  is  repealed.  The  Irish  Common  Law  Procedure  Act  of 
1853,^  also  repeals,  by  §  09,  "  so  much  of  any  Act  of  Parliament 
as  entitles  or  permits  any  person  to  plead  the  general  issue  only, 
and  to  give  special  matter  in  evidence  without  pleading  the  same." 
Unfortunately  a  similar  clause  is  not  to  be  found  in  either  of  the 
English  Common  Law  Procedure  Acts;  and  the  pleader  is  conse- 
quently still  left  to  discover,  as  best  he  may,  in  what  cases  the 
defendant  may  or  may  not  avail  himself  of  this  indefinite  and 
comprehensive  form  of  pleading. 

§  315.  It  is  not  intended  here  to  furnish  a  list  of  the  statutes  g  297 
which  authorise  such  pleas,  but  among  them  will  be  found  the 
Acts  passed  in  1861  for  consolidating  the  law  relating  to  larceny, 
malicious  injuries,  and  coin."  In  every  action,  too,  which  is 
brought  against  a  jusiice  of  the  peace,  "for  anything  done  by 
him  in  tho  execution  of  his  office,'''  the  defendant, — besides  enjoying 
many  other  privileges,^— is  allowed  to  plead  the  general  issue,  and 
"  to  give  any  special  matter  of  defence,  excuse,  or  justification, 
in  evidence  under  such  plea."  *  He  may  even  prove  under  the 
general  issue,  that  after  notice  of  action  and  before  the  writ  was 
issued,  he  tendered  amends  to  the  plaintifP,  or  that  after  the  com- 
mencement of  the  suit,  and  before  issue  joined,  he  paid  money 
into  court  ;^  and  this  circumstance  is  here  mentioned,  because  in 
Cock  v.  Gent,  18  M.  &  W.  234;  Barnett  v.  Cox,  9  Q.  B.  617;  Pilkington  v. 
Riley,  G  Dowl.  &  L.  628;  3  Ex.  R.  739,  S.  C. ;  Shepherd  v.  Sharp,  25  L.  J., 
Ex.  254;  1  H.  &  N.  115,  S.  C. 

1  16&17  V.,c.  113,  Ir. 

2  24  &  25  v.,  c.  96,  IW^\  c.  97,  ?.  71;  c.  99,  ?  33.  See,  also,  the  Seamen's 
Clothing  Act,  1869,  32  &  33  V.,  c.  57,  I  6. 

3  See  11  &  12  v.,  c.  44;  and  Kirby  v.  Simpson,  23  L.  J.,  M.  C,  165,  cited 
ante,  p.  300,  n.'.  *  ?  10. 

^  ?.  11  enacts,  that  "  in  every  such  case  after  notice  of  action  shall  be  so  given 
as  aforesaid,  and  before  such  action  shall  be  commenced,  such  justice  to  whom 
such  notice  shall  be  given  may  tender  to  the  party  complaining,  or  to  his 
attorney  or  agent,  such  sum  of  money  as  he  may  think  fit  as  amends  for  the 
injury  complained  of  in  such  notice;  and  after  such  action  shall  have  been 
commenced,  and  at  any  time  before  issue  joined  therein,  such  dcfendcnt.  if  he 
have  not  made  such  tender,  or  in  addition  to  such  tender,  shall  be  at  liberty  to 
pay  into  court  such  sum  of  money  as  he  may  think  fit,  and  which  said  tender 
and  payment  of  money  into  court,  or  either  of  them,  may  afterwards  be  given 
in  evidence  by  the  defendant  at  the  trial  under  the  general  issue  aforesaid;  and 
if  the  jury  at  the  trial  shall  be  of  opinion  that  the  plaintiff  is  not  entitled  to 

(3168) 


CHAP.  II.]       ACTION  FOR  INFRINGEMENT  OF  PATENT.  303 

most  of  the  other  statutes/  which  empower  defendants  to  plead 
the  general  issue,  and  to  tender  or  pay  into  court  amends  for  the 
injury  complained  of,  it  is  expressly  enacted  that  such  tender  or 
payment  into  court  shall  be  specially  pleaded." 


§  315a.  The  general  rule  of  law,  which  limits  proof  to  the 
matters  put  in  issue  by  the  pleadings,  as  stated  above  in  §  298, 
and  which  is  equally  applicable  to  all  actions,  has  been  supple- 
mented, in  the  case  as  an  action  being  brought  for  infringement  of 
a  patent,  by  a  more  stringent  and  precise  rule  ;  for  the  recent 
statute,^  which  consolidates  the  law  relating  to  patents,  has  expressly 
provided,  in  §  29,  as  follows  : — • 

"(1.)  In  an  action  for  infringement  of  a  patent  the  plaintiff 
must  deliver  with  his  statement  of  claim,  or  by  order  of  the  court 
or  the  judge,  at  any  subsequent  time,  particulars  of  the  breaches 
complained  of. 

"(2.)  The  defendant  must  deliver  with  his  statement  of  defence, 
or,  by  order  of  the  court  or  a  judge,  at  any  subsequent  time,  parti- 
culars of  any  objections  on  which  he  relies  in  support  thereof. 

"(3.)  If  the  defendant  disputes  the  validity  of  the  patent,  the 
particulars  delivered  by  him  must  state  on  what  grounds  he  dis- 
putes it,  and,  if  one  of  those  grounds  is  want  of  novelty,  must 
state  the  time  and  place  of  the  previous  publication  or  user  alleged 
by  him. 

"(4.)  At  the  hearing  no  evidence  shall,  except  by  leave  of  the 

damages  beyond  the  sum  so  tendered  or  paid  into  court,  or  bej'ond  the  sums 
so  tendered  and  paid  into  court,  then  they  shall  give  a  verdict  for  the  defendant, 
and  the  plaintiff  shall  not  be  at  liberty  to  elect  to  be  nonsuit,  and  the  sum  of 
money,  if  any,  so  paid  into  court,  or  so  much  thereof  as  shall  be  sufficient  to 
pay  or  satisfy  the  defendant's  costs  in  that  behalf  shall  thereuiwn  be  paid  out 
of  court  to  him,  and  the  residue,  if  any,  shall  be  paid  to  the  plaintiff;  or  if, 
where  money  is  so  paid  into  court  in  any  such  action,  the  plaintiff  shall  elect ' 
to  accept  the  same  in  satisfaction  of  his  damages  in  the  said  action,  he  may 
obtain  from  any  judge  of  the  court  in  which  such  action  shall  be  brought 
an  order  that  such  money  shall  be  paid  out  of  court  to  him,  and  that  the 
defendant  shall  pay  him  his  costs  to  be  taxed,  and  thereupon  the  said  action 
shall  be  determined,  and  such  order  shall  be  a  bar  to  any  other  action  for  the 
same  cause." 

^  Not  in  all.  See  the  County  Ct.  Acts,  9  &  10  V..  c.  95,  §  138;  &  15  &  16 
v.,  c.  54,  ?  6.  See,  also,  the  Acts  of  1861,  cited  ante,  p.  302,  n.'^;  and  11  G.  2, 
c.  19,  U  20,  21. 

M5  &  46  v.,  c.  50,  §  226,  subs.  2.  ^  A6  &  47  V.,  c.  57. 

(3169) 


304  EVIDENCE  OF  COLLATERAL  FACTS  EXCLUDED.  [PART  II. 

court  or  a  judge,  be  admitted  in  proof  of  any  alleged  infringement 
or  objection,  of  which  particulars  are  not  so  delivered. 

"(5.)  Particulars  delivered  may  be  fi'om  time  to  time  amended, 
by  leave  of  court  or  a  judge. 

"(6.)  On  taxation  of  costs,  regard  shall  be  had  to  the  particulars 
delivered  by  the  plaintiff  and  by  the  defendants  ;  and  they  respec- 
tively ehall  not  be  allowed  any  costs  in  respect  of  any  particular 
delivered  by  them,  unless  the  same  is  certified  by  the  court  or  a 
judge  to  have  been  proven,  or  to  have  been  reasonable  and  proper, 
without  regard  to  the  general  costs  of  the  case." 

§  316.  The  rule  confining  evidence  to  the  points  in  issue,  not  §  21)8 
only  precludes  the  litigant  parties  from  proving  any  facts  not 
distinctly  controverted  by  the  pleadings,  but  it  limits  the  mode 
of  proving  even  the  issues  themselves.  Thus,'  it  excludes  all 
evidence  of  collateral  facts,  which  are  incapable  of  affording  any 
reasonable  pi-esumption  as  to  the  principal  matters  in  dispute ; 
and  the  reason  is,  that  such  evidence  tends  needlessly  to  consume 
the  public  time,  to  draw  away  the  minds  of  the  jurors  from  the 
points  in  issue,  and  to  excite  prejudice  and  mislead  ;  moreover, 
the  adverse  party,  having  had  no  notice  of  such  evidence,  is  not 
prepared  to  rebut  it.  The  due  application  of  this  rule  will  occa- 
sionally tax  to  the  utmost  the  firmness  and  discrimination  of  the 
judge  ;  so  that  while  he  shall  reject,  as  too  remote,  every  fact 
which  merely  furnishes  a  fanciful  analogy  or  conjectural  inference, 
he  may  admit  as  relevant  the  evidence  of  all  those  matters  which 
shed  a  real,  though  perhaps  an  indirect  and  feeble,  light  on  the 
question  in  issue.  And  here  it  will  generally  be  found  that  the 
circumstances  of  the  parties  to  the  suit,  and  the  position  in  which 
they  stood"  when  the  matter  in  controversy  occurred,  are  proper 
subjects  of  evidence  ;  and  indeed,  the  change  in  the  law  enabling 
parties  to  give  testimony  for  themselves,  has  rendered  this  proof 
of  ^'^ surrounding  circumstances,^^  still  more  important  than  it  was  in 
former  times.^    In  accordance  with  this  doctrine  it  has  been  properly 


^  Gr.  Ev.  §  52,  in  part  for  six  lines. 

2  See  Woodward  v.  Buchanan,  39  L.  J.,  Q.  B.  71 ;  5  Law  Rep.,  Q.  B.  285, 
3.  C. 

3  Bowling  V.  Dowling,  10  Ir.  Law  R.,  N.  S.  244,  per  Pigot,  C.  B. 

(3170) 


CHAP.  II.]  RES  INTER  ALIOS  ACTM  EXCLUDED.  305 

held,  that,  in  an  action  for  money  lent,  the  poverty  of  the  alleged 
lender  was  a  very  relevant  fact,  the  evidence  of  w^hich  was  admissible 
for  the  purpose  of  disproving  the  loan.' 

§  317.  The  most  important  class  of  facts  which  are  excluded  §  298a 
on  the  ground  of  irrelevancy,  comprises  the  acts  and  declarations, 
either  of  strangers,  or  of  one  of  the  parties  to  the  action  in  his 
dealings  with  strangers.  These, — which  in  tLe  technical  language 
of  the  law  are  denominated  '  res  inter  alios  actce,^ — it  would  be 
manifestly  unjust  to  admit,  since  the  conduct  of  one  man  under 
certain  circumstances,  or  towards  certain  individuals,  varying  as  it 
will  necessarily  do  according  to  the  motives  which  influence  him, 
the  qualities  he  possesses,  and  his  knowledge  of  the  character  of 
those  with  whom  ho  is  dealing,  can  never  afford  a  safe  criterion  by 
which  to  judge  of  the  behaviour  of  another  man  similarly  situated, 
or  of  the  same  man  towards  other  persons. 

§  318.  The  application  and  extent  of  this  rule  will  be  best  under-  g  299 
stood  by  referring  to  a  few  of  the  leading  decisions  on  the  subject. 
In  an  action  of  trover  brought  against  the  creditor  of  a  bankrupt 
by  the  assignees,  the  goods  in  dispute  were  sought  to  be  jjj^covered 
on  the  ground  that,  before  they  came  into  the  hands  of  the 
defendant,  acts  of  bankruptcy  had  been  committed;  and  the 
plaintiffs  endeavoured  to  prove  these  acts  by  showing  the  prior 
delivery  of  other  goods  to  various  creditors,  who,  after  the  fiat 
had  issued,  had  returned  them  to  the  assignees;  but  the  court 
was  of  opinion  that  the  conduct  of  these  creditors  in  returning  the 
goods  could  not  affect  the  title  of  the  defendant.  The  only  way 
in  which  their  conduct  bore  upon  the  case,  was  by  showing  their 
conviction  that  they  had  received  the  goods  under  circumstances 
which  did  not  entitle  them  to  keep  possession  ;  and  as  their 
opinions,  expressed  after  the  fiat,  could  not  have  been  received, 
evidence  of  their  acts,  adduced  for  the  purpose  of  raising  an 
inference  respecting  the  previous  intentions,  either  of  themselves 
or  of  the  bankrupt,  was  equally  inadmissible.^  So,  proof  of  the 
usage   of    a  particular   estate,    however   extensive    it   may   be,   is 


^  Dowling  V.  Dowling,  10  Ir.  Law  R.,  N.  S.  236. 
»  Backhouse  v.  Jones,  G  Bing.  N.  C.  65;  8  Scott,  148,  S.  C. 
20   LAW  OF  EVH). — v.  I.  (3171) 


306  RES  INTER  ALIOS  ACTiE  EXCLUDED.  [PART  11. 

inadmissiblo  for  the  purpose  of  importing  into  the  lease  of  a  farm 
on  that  estate  some  special  stipulations  relative  to  the  mode  of 
cultivation.'  So,  where  the  question  between  landlord  and  tenant 
was,  whether  the  rent  was  payable  quarterly  or  half-yearly, 
evidence  of  the  mode  in  which  other  tenants  of  the  same  land- 
lord paid  their  rent  was  rejected;"  and  where  it  was  necessary  for 
a  brewer  to  prove  that  he  had  supplied  a  publican  with  good  beer, 
other  publicans  were  not  allowed  to  show  that,  during  the  same 
period  as  the  dealing  in  question,  he  had  furnished  them  with  beer 
of  an  excellent  quality,  for  a  man  may  deal  well  with  some  of  his 
customers,  though  not  with  others.^ 


§  319.  In  another  case,  where  the  point  in  issue  was  whether  the  ^  299 
plaintiff's  scholars  were  ill- fed,  a  witness  was  not  allowed  to  be  asked 
as  to  the  comparative  quality  of  the  provisions  supplied  by  the  plain- 
.tifif,  with  those  consumed  in  a  particular  school,  where  the  witness 
was  educated,  though  evidence  would  be  admissible  to  show  the 
general  treatment  of  boys  at  schools.*  Again,  in  an  action  of 
contract  against  a  married  woman,  where  the  issue  was  in  part, 
whether  the  defendant  had  represented  herself  to  the  plaintiff  as  a 
feme  sole,  and  whether  he  had  dealt  with  her  believing  her  to  be 
such,  it  was  held  that  evidence  of  the  defendant's  dealings  with  other 
tradesmen  could  only  be  admissible,  if  at  all,  on  the  ground  that 
she  had  held  herself  out  to  them  as  a  single  woman,  in  such 
a  manner  as  to  reach  the  plaintiff" 's  ears.^  So,  also,  in  an  action 
brought  by  the  indorsee  against  the  acceptor  of  a  bill,  where  the 
defence  was  that  the  acceptance  was  a  forgery,  evidence  that  a  col 


'  Womersley  v.  Dally,  26  L.  J.,  Ex.  219. 

^  Carter  v.  Pryke,  Pea.  R.  95,  per  Ld.  Kenyon. 

^  Holcombe  v.  Hewson,  2  Camp.  391,  per  Ld.  Ellenhorough.  See,  also, 
Hollingham  v.  Head,  27  L.  J.,  C.  P.  241;  4  Com.  B.,  N.  S.  388,  8.  C. ;  Rew  v. 
Hutchins,  10  Com.  B.,  N.  S.  829;  Howard  r.  Sheward,  36  L.  J.,  C.  P.  42; 
2  Law  Rep.,  C.  P.  148,  S.  C. 

*  Boldron  v.  Widdows,  1  C.  &  P.  6.j,  per  Abbott,  C.  J. 

*  Barden  v.  Keverberg,  2  M.  &  W.  61.  See  Smith  v.  Wilkins,  6  C.  &  P. 
180,  where,  the  question  being  whether  credit  was  given  to  defendant's  -mfe 
or  to  her  father,  evidence  that  other  tradesmen  had  gi.ven  credit  to  the 
father  was  properly  rejected  by  Tindal,  C.  J.  Also  Delamotte  v.  Lane,  9 
C.  &  P.  261. 

(3172) 


CHAP.  II.]  CUSTOMS    OF    MANORS    WHEN   ADMISSIBLE.  307 

lection  of  bills,  on  which  the  defendant's  acceptance  was  forged,  had 
been  in  the  plaintiff's  possession,  and  that  some  of  them  had  been 
circulated  by  him,  was  rejected,  as  no  distinct  proof  was  given  that 
the  bill  in  question  had  ever  formed  2icirt  of  that  collection.^ 

§  320.  These  last  words  deserve  special  notice,  since  they  point  ^  300 
out  an  exception  to  the  rule  under  discussion,  in  favour  of  the 
admissibility  of  facts  which,  though  collateral,  are  proved  to  be 
connected  by  some  general-  link  with  the  matter  in  issue.  This 
exception  has  been  recognised  in  numerous  cases.  Thus,  no  rule 
is  better  established,  or  more  frequently  acted  upon,  than  that  which 
precludes  the  customs  of  one  manor  from  being  given  in  evidence 
to  prove  the  customs  of  another;  because,  as  each  manor  may  have 
customs  peculiar  to  itself,  to  admit  the  peculiar  customs  of  another 
manor  in  order  to  show  the  customs  of  the  manor  in  question, 
would  be  a  very  false  guide  for  the  purpose  of  leading  to  any  sound 
conclusion,  and  would,  in  fact,  put  an  end  to  all  question  as  to  the 
peculiar  customs  in  particular  manors,  by  throwing  them  open 
to  the  customs  of  all  surrounding  manors."  Still,  such  customs 
become  evidence  the  moment  that  a  foundation  has  been  laid  for 
their  admission,  by  clear  proof  of  a  sufficient  connexion  between 
the  two  manors.  The  mere  fact,  indeed,  that  the  two  lie  within 
the  same  parish  and  leet,  will  not  be  sufficient;  nor  oven  that  the 
one  was  a  subinfeudation  of  the  other;  at  least,  u^nless  it  be  clearly 
shown  that  they  were  separated  after  the  time  of  legal  memory, 
since  otherwise  they  may  have  had  different  immemorial  customs.^ 
If,  however,  it  can  be  satisfactorily  proved  that  the  customs  in  the 
two  manors  are  identical,  or  that  the  one  was  derived  from  the 
other  after  the  time  of  Richard  the  First,  then  the  customs  of  each 
will  respectively  become  evidence;*  and  so,  also,  if  the  custom  in 


1  Griffiths  V.  Payne,  11  A.  &  E.  131  ;  3  P.  &  D.  107,  S.  C.  ;  Thompson  v. 
Mosely,  5  C.  &  P.  502,  per  Ld.  Lyndhurst ;  Viney  v.  Barss,  Esp.  293,  per 
Ld.  Kenyon  ;  Balcetti  v.  Serani,  Pea.  R.  142,  per  Bnller,  J.  Such  evidence 
would  be  clearlj'  inadmissible  in  an  indictment  for  forgery,  per  Ld.  Denman, 
11  A.  &  E.  133. 

2  M.  of  Anglesey  v.  Ld.  Hatherton,  10  M.  &  W.  235,  per  Ld.  Abinger ; 
Furneaux  j).  Hutchins,  2  Cowp.  807  ;  Doe  v.  Sisson,  12  East,  62. 

'  M.  of  Anglesey  v.  Ld.  Hatherton,  10  M.  &  W.  218. 
*  Id.  242,  243,  per  Alderson,  B. 

(3173) 


808        COLLATERAL  FACTS  CONNECTED  WITH  FACT  IN  ISSUE.  [PART  II. 

question  be  a  particular  incident  of  the  general  tenure  which  is 
proved  to  be  common  to  the  two  manors,  evidence  may  be  given  of 
what  the  custom  of  the  one  is  as  to  that  tenure,  for  the  purpose  of 
showing  what  is  the  custom  of  the  other  as  to  the  same/  For 
instance,  prove  in  a  particular  manor  that  borough  English  or 
gavelkind  prevails,  and  then  you  may  see  from  other  manors  what 
are  the  peculiarities  of  these  tenures.^ 

§  321.  The  manors  on  the  border  between  England  and  Scot-  §  301 
land,"  and  those  in  the  mining  districts  of  Derbyshire  and  Cornwall, 
will  furnish  other  examples  of  the  application  of  this  rule;  since, 
throughout  the  former,  a  particular  species  of  tenure,  called  tenant- 
right,  and  in  the  latter,  particular  customs,  as  to  the  rights  of  the 
miners  and  the  rights  to  the  minerals,  prevail;  and  consequently,  if 
in  one  of  the  manors  no  example  can  be  adduced  of  what  is  the 
custom  in  any  particular  case,  it  is  only  reasonable  that,  in  order  to 
explain  the  nature  of  the  tenure  or  right  in  question,  which  is  not 
confined  to  a  single  manor,  but  prevails  equally  in  a  great  number, 
evidence  should  be  admissible  to  show  what  is  the  general  usage 
with  respect  to  that  tenure  or  right.''  Thus,  where  in  each  of 
several  manors  belonging  to  the  same  lord,  and  forming  part  of  the 
same  district,  a  particular  class  of  tenants  called  assessional  tenants 
held  the  farms,  to  whom  their  tenements  were  gi'anted  by  similar 
words,  evidence  of  the  rights  enjoyed  by  those  tenants  in  one  manor 
was  received,  to  show  the  extent  of  their  rights  in  another.^  This 
last  case,  indeed,  raised  no  question  as  to  manorial  title;  for  had 
there  been  no  manor  at  all,  precisely  the  same  evidence  would  have 
been  admissible,  provided  the  land  had  been  all  held  under  the 
assessional  tenure.*^ 


'  M.  of  Anglesey  v.  Ld.  Hatherton,  10  M.  &  M.  242,  243,  per  Alderson,  B.  ; 
Stanley  v.  White,  14  East,  338,  341,  342,  per  Ld.  Ellenborough  ;  R.  v.  Ellis, 
1  M.  &  Sel.  662,  per  id.  ;  D.  of  Somerset  v.  France;  1  Str.  662  ;  Champian  v. 
Atkinson,  3  Keb.  90  ;  explained  by  Rolfe,  B.,  in  10  M.  &  W.  246,  247. 

2  M.  of  Anglesey  v.  Ld.  Hatherton,  10  M.  &  W.  246,  per  Rolfe,  B. 

^  Rowe  V.  Parker,  5  T.  R.  31,  per  Ld.  Kenyon. 

*  M.  of  Anglesey  v.  Ld.  Hatherton,  10  M.  &  W.  237.  per  Ld.  Abinger. 

6  Rowe  V.  Brenton,  8  B.  &C.  758 ;  3  M.  &  R.  361,  S.  C. 

«  Per  Ld.  Abinger,  in  M.  of  Anglesey  v.  Ld.  Hatherton,  10  M.  &  W.  237, 
238. 

(3174) 


CHAP  II.]   COLLATERAL  FACTS  CONNECTED  WITH  FACT  IN  ISSUE,        309 

§  322.  Again,  upon  a  question  whether  the  Crown,  in  right  of  §  302 
the  Duchy  of  Lancaster,  had  the  exclusive  privilege,  under  the 
original  charter  granted  to  Henry  Duke  of  Lancaster  in  the  year 
1349,  of  appointing  a  coroner  within  the  honour  of  Pontefract, 
evidence  of  appointments  of  coroners,  and  of  their  acting,  in  other 
parts  of  the  duchy,  out  of  the  honour  of  Pontefract,  was  held  admis- 
sible.^ On  the  same  principle,  the  mode  of  conducting  a  particular 
branch  of  trade  in  one  place  has  been  proved,  by  showing  the  mariner 
in  which  the  same  trade  is  carried  on  in  another  place ;  ^  and  where 
the  dispute  at  the  trial  was  as  to  the  exact  line  of  boundary  between 
the  manors  of  Wakefield  and  Rochdale  which  the  plaintiff  contended  ' 
was  the  ridge  of  a  mountain,  whence  the  waters  descended  in  oppo- 
site directions,  he  was  allowed  to  prove,  in  support  of  this  view, 
that  the  ridge  of  the  same  range  ci.  hills  separated  the  manor  of 
Rochdale  from  another  manor  which  adjoined  the  manor  of  Wake- 
field; because,  this  being  natural  boundary,  which  was  equally 
suitable  in  both  cases,  it  was  highly  improbable  that  it  should  have 
been  varied.^ 


§  323.  In  like  manner  it  has  been  held, — upon  a  question  whether  ^  303 
a  slip  of  waste  land,  lying  between  the  highway  and  the  enclosed 
lands  of  the  plaintiff,  belonged  to  him,  or  to  the  lord  of  the  manor, — ■ 
that  the  lord  might  give  evidence  of  acts  of  ownership  on  other  parts 
of  the  waste  land  between  the  same  road  and  the  enclosures  of  other 
persons,  although  at  the  distance  of  two  miles  from  the  spot  in 
dispute,  and  although  the  continuity  of  the  waste  was  interrupted  for 
the  space  of  some  sixty  or  seventy  yards,  by  the  intervention  of  a 
bridge  and  some  old  houses.*  So,  where,  in  trespass,  the  object  of 
the  plaintiff  was  to  prove  himself  the  owner  of  the  entire  bed  of  a 
river  flowing  between  his  land  and  that  of  the  defendant,  and  thus 
to  rebut  the  presumption  that  each  party  was  entitled  ad  medium 


'  Jewison  v.  Dyson,  9  M.  &  W.  540.     See  Fleet  v.  Murton,  41  L.  J.,  Q.  P..  49. 

^  Noble  V.  Kennoway,  2  Doug.  510. 

^  Brisco  V.  Lomax,  8  A.  &  E.  198 ;  3  N.  &  P.  388,  S.  C. 

*  Doe  V.  Kemp,  7  Bing.  332 ;  2  Bing.  N.  C.  102 ;  2  Scott,  9,  S.  C.  recog- 
nised by  Parke,  B.,  in  Jones  v.  Williams,  2  M.  &  W.  327,  328  ;  Bryan  v. 
Winwood,  1  Taunt.  208  ;  Dendy  v,  Simpson,  18  Com.  B.  831. 

(3175) 


310        COLLATERAL  FACTS  CONNECTED  WITH  FACT  IN  ISSUE.    [PABT  11. 

filum  aqre/  he  was  allowed  to  give  in  evidence  acts  of  ownership 
exercised  by  himself  upon  the  bed  and  banks  of  the  river  on  the  de- 
fendant's side,  lower  down  the  stream,  where  it  flowed  between  the 
plaintiff's  land  and  the  farm  of  a  third  party,  adjoining  the  defen- 
dant's property,  as  also  repairs  which  he  had  done,  beyond  the 
limits  of  the  defendant's  land,  to  a  fence  which,  dividing  that  and 
other  land  from  the  river,  ran  along  the  side  of  the  stream  for  a 
considerable  distance,  till  it  came  opposite  to  the  extremity  of  the 
plaintiff''s  property  on  the  other  side." 

1  Ante,  I  119. 

2  Jones  V.  Williams,  2  M.  &  W.  326.  The  observations  of  Parke,  B.,  in  this 
case  are  so  pertinent,  that  no  apology  is  necessary  for  introducing  them  here  at 
length.  "I  am  also  of  opinion  that  this  case  ought  to  go  down  to  a  new  trial, 
because  I  think  the  evidence  olfered  of  acts  in  another  part  of  one  continuous 
hedge,  and  in  the  Avhole  bed  of  the  river,  adjoining  the  plaintiff's  land,  was 
admissible  in  evidence,  on  the  ground  that  they  are  such  acts  as  might  reason- 
ably lead  to  the  inference  that  the  entire  hedge  and  bed  of  the  river,  and,  con- 
sequently, the  part  in  dispute,  belonged  to  tlie  plaintiff.  Ownership  may  be 
proved  by  proof  of  i^ossession,  and  that  can  be  shown  by  acts  of  enjoyment; 
of  the  land  itself;  but  it  is  impossible,  in  the  nature  of  things,  to  contine  the 
evidence  to  the  very  precise  spat  on  which  the  alleged  trespass  may  have  been 
committed  ;  evidence  may  be  given  of  acts  done  on  other  parts,  provided  there  is 
such  a  common  character  of  locality  between  those  parts  and  the  spot  in  question,  as 
would  raise  a  reasonable  inference  in  the  minds  of  the  jury,  that  the  place  in 
dispute  belonged  to  the  plaintiff  if  the  other  parts  did.  In  ordinary  cases,  to  prove 
his  title  to  a  close,  the  claimant  may  give  in  evidence  acts  of  ownership  in  any 
part  of  the  same  enclosure  ;  f-jr  the  ownership  of  one  part  causes  a  reasonable 
inference  that  the  other  belongs  to  the  same  person  ;  though  it  by  no  means 
follows  as  a  necessary  consequence,  for  differeni  persons  may  have  balks  of 
land  in  the  same  enclosure  ;  but  this  is  a  fact  to  be  submitted  to  the  jury.  So, 
I  apprehend,  the  same  rule  is  applicable  to  a  wood  which  is  not  enclosed  by 
any  fence:  if  you  prove  the  cutting  of  timber  in  one  part,  I  take  that  to  be 
evidence  to  go  to  a  jury  to  prove  a  right  in  the  whole  wood,  although  there  be 
no  fence,  or  distinct  l)oundary  surrounding  the  whole  ;  and  the  case  of  Stanley 
V.  White,  14  East,  :>:32,  I  conceive,  is  to  be  explained  on  this  principle  :  there 
was  a  continuoiis  belt  of  trees,  and  acts  of  ownership  on  one  part  were  held  to 
be  admissible  tj  prove  that  the  plaintiff  was  the  owner  of  another  part,  on 
which  the  trespass  was  committed.  So  I  should  apply  the  same  reasoning  to 
a  continuous  hedge  ;  though  no  doubt  the  defendant  might  rebut  the  inference 
that  the  Avhole  belonged  to  the  same  person,  by  showing  acts  of  ownership  en 
his  part  along  the  same  fence.  It  has  been  said  in  the  course  of  the  argument, 
that  the  defendant  had  no  interest  to  dispute  the  acts  of  ownership  not  opposite  his 
own  land;  but  the  ground  on  ivhieh  such  acts  are  admissible  is  not  the  acquies- 
cence of  any  party  :  they  are  admissible  of  themselves  'proprio  rigore,  for  they 
tend  to  jjrove  that  he  who  does  them  is  the  owner  of  the  soil ;  though  if  they  are 
dorte  in  the  absence  of  all  persons   interested    to    dispute    them,    they    are  of  less 

(3176) 


CHAP.  II.]     COLLATERAL  FACTS  CONNECTED  WITH  FACT  IN  ISSUE.     311 

§  324.  The  same  principle  applies  with  increased  force  to  the  ^  304 
case  of  mines,  because  it  is  not  possible  that  the  lessees  of  minerals, 
lying  under  an  extensive  district,  can  enter  upon,  and  take  actual 
possession  of,  every  part  of  that  which  forms  the  subject  of  demise; 
and,  moreover,  the  mode  of  occupying  a  mine  cannot  afford  the  same 
evidence  of  possession  as  the  occupation  of  the  surface,  the  produce 
of  which  is  from  time  to  time  consumed  and  renewed.  When  one 
is  taken,  it  is  gone  for  ever.  Evidence,  therefore,  of  working  under 
one  part  of  the  surface  is,  under  a  demise  of  all  mines  and  minerals 
lying  beneath  a  large  continuous  tract  of  waste  land,  evidence  of 
possession  of  the  entire  subject  of  demise.' 

§  325.  In  these,  and  the  like  cases,  it  is  for  the  judge  to  decide,^  ^  305 
whether  such  an  unity  of  character  exists  between  the  spot  in 
dispute  and  the  parcel  of  land  over  which  acts  of  ownership  have 
been  exercised,  as  to  lead  to  the  fair  inference  that  both  are  subject 
to  the  same  rights,  and  constitute  in  fact  but  parts  of  an  entire  pro- 
perty. If  no  such  inference  can  be  raised,  evidence  of  acts  done 
beyond  the  limits  of  the  locus  in  quo  will  be  inadmissible.  Thus, 
where  it  was  attempted  to  connect  parcels  of  waste  land  with  each 
other,  merely  by  showing  that  they  all  lay  within  the  same  manor, 
and  between  enclosures  and  public  roads,  it  was  held  that  evidence 
of  acts  of  ownership  over  some  of  these  lands  was  inadmissible  to 
prove  title  to  the  others.^ 


toeight.  That  observation  applies  only  to  the  efifect  of  the  evidence.  Apply- 
ing that  reasoning  to  the  present  case,  surely  the  jilaintiff,  who  claims  the 
whole  bed  of  the  river,  is  entitled  to  show  the  taking  of  stones,  not  only  on 
the  spot  in  question,  but  all  along  the  bed  of  the  river,'  which  he  claims  as 
being  his  property ;  and  he  has  a  right  to  have  that  submitted  to  the  jury.  The 
same  observation  applies  to  the  fence  and  the  banks  of  the  river.  "What  weight 
the  jury  may  attach  to  it  is  another  question.  The  principle  is  the  same  as 
that  which  is  laid  down  in  Doe  r.  Kemp." — pp.  331,  332.  See,  also,  R.  v. 
Brightside,  Bierlow,  13  Q.  B.  933;  Peardon  r.' Underhill,  16  Q.  B.  120;  Done- 
gall  V.  Templemore,  9  Jr.  Law  Kep.,  N.  S.  374,  406,  per  Christian,  J.;  and  In 
re  Belfost  Dock  Act,  I.  R.,  1  Eq.  128,  142. 

1  Taylor  r.  Parry,  1  M.  &  Gr.  604,  615,  per  Tindal,  C.  J.,  1  Scott,  N.  R.  576, 
S.  C. 

*  Doe  V.  Kemp,  7  Bing.  336,  per  Bosanquet,  J. ;  ante,  ^  24. 

'  Doe  V.  Kemp,  2  Bing.  N.  C.  102.  Ld.  Denman,  in  giving  judgment,  ob- 
serves,  "  If  the  lord  has  a  right  to  one  piece  of  waste  land,  it  affords  no  infer- 

(3177) 


312    COLLATERAL  FACTS  WHEN  EXCLUDED  IN  CRIM,  CASES.       [PART  II. 

§  320.  This  rulo,  limited  in  the  manner  above  stated,  is  founded  g  ^Od 
on  common  sense  and  common  justice,  and  applies  with  even  greater 
force  to  criminal  than  to  civil  proceedings;  for,  as  one  of  the  chief 
objects  of  an  indictment  is  to. afford  distinct  information  to  the  pri- 
soner of  the  specific  charge  which  is  about  to  be  brought  against 
him,  the  admission  of  any  evidence  of  facts  unconnected  with  that 
charge,  would  be  clearly  open  to  the  serious  objection  of  taking  the 
prisoner  by  surprise.  No  man  should  be  bound  at  the  peril  of  life 
or  liberty,  fortune  or  reputation,  to  answer  at  once  and  unprepared 
for  eveiy  action  of  his  life.  Few  even  of  the  best  of  men  would  . 
choose  to  submit  to  such  an  ordeal.'  If,  therefore,  on  an  indictment 
for  burglariously  entering  a  house  on  a  certain  day  and  stealing 
goods  therein,  the  prosecutor  fail  in  proving  that  any  larceny  was  on 
that  occasion  committed,  he  cannot  abandon  the  charge  of  burglary, 
and  then  proceed  to  show  that  the  prisoner  stole  some  of  the  articles 
mentioned  in  the  indictment  on  a  previous  occasion;  because,  though 
time  is  not  usually  a  material  allegation,  yet  the  prisoner,  having 
been  led  to  suppose  that  he  was  to  meet  a  charge  of  burglary, 
cannot  be  expected  to  come  prepared  to  prove  his  innocence  with 
respect  to  a  distinct  offence,  committed,  if  at  all,  at  a  totally  different 
time.^  So,  an  admission  by  the  prisoner,  that  he  has,  at  another 
time,  committed  an  offence  similar  to  that  with  which  he  is  charged, 
and  that  he  has  a  tendency  to  perpetrate  such   crimes,  cannot  be 


ence,  even  the  most  remote,  that  he  has  a  right  to  anotlier,  in  the  same  manor, 
although  both  may  be  similarly  situated  with  respect  to  the  highway;  assum- 
ing that  all  were  originally  the  jjroperty  of  the  same  person,  as  the  lord  of  the 
manor,  which  is  all  that  the  fact  of  their  being  in  the  same  manor  proves,  no 
presumption  arises  from  his  retaining  one  part  in  his  hands,  that  he  retained 
another;  nor,  if  in  one  part  of  the  manor  the  lord  has  dedicated  a  portion  of 
the  waste  to  the  use  of  the  public,  and  granted  out  the  adjoining  land  to  private 
individuals,  does  it  by  any  means  follow,  nor  does  it  raise  any  probability, 
that  in  another  part  he  may  not  have  granted  the  whole  out  to  private  individ- 
uals, and  they  afterwards  have  dedicated  part  as  a  public  road.  But  the  case 
is  very  different  with  respect  to  those  parcels,  Avhich  from  their  local  situation 
may  be  deemed  parts  of  one  waste  or  common;  acts  of  ownership  in  one  part 
of  the  same  field,  are  evidence  of  title  to  the  whole;  and  the  like  may  be  said 
of  similar  acts  on  part  of  one  large  waste  or  common." — pp.  107,  108.  See, 
also,  Tyrwhitt  v.  Wynne,  2  B.  &  A.  554;  Hollis  v.  Goldfinch,  1  B.  &  C.  218, 
219,  per  Bayley,  J. 

1  Fost.,  C.  L.  246. 

2  R.  V.  Vandercomb,  2  Lea.  708;  2  East,  P.  C.  519,  S.  C. 

(3178) 


CHAP.  II.]  WHAT  COLLATERAL  FACTS  ADMISSIBLE.  313 

received;'  and,  in  treason,  no  overt  act  amounting  to  a  distinct 
independent  charge,  though  falRng  under  the  same  head  of  treason, 
can  be  given  in  evidence,  unless  it  be  either  expressly  laid  in  the 
indictment,  or  be  direct  proof  of  any  of  the  overt  acts  which  are 
laid."  Thus,  on  an  indictment  for  adhering  to  the  King's  enemies 
on  the  high  sea,  where  the  overt  act  laid  was  the  prisoner's  cruis- 
ing on  the  King's  subjects  in  a  vessel  called  the  Loyal  Clencarty, 
evidence  that  he  had  some  time  before  cut  away  the  custom-house 
barge,  and  gone  a  cruising  in  her,  was  rejected.^ 


§  327.  But  when  felonies  are  so  connected  together  as  to  form  §  307 
part  of  one  entire  transaction,  evidence  of  one  may  be  given  to  show 
the  character  of  the  other.^  Thus,  where  th-  essee  of  a  coal- mine 
had  run  levels  from  his  own  shaft  into  his  neighbours'  mines,  and 
had,  during  a  period  of  four  years,  been  constantly  extracting  coal 
belonging  to  thirty  different  proprietoi's,  an  indictment  charging  him 
in  one  and  the  same  count  with  stealing  the  coal  of  each  of  these  pro- 
prietors was  held  to  be  valid;  and  although  the  judge,  in  summing 
up,advised  the  jury  to  confine  their  attention  to  one  particular  charge, 
he  refused  to  make  the  prosecutor  elect  on  which  case  he  would  rely, 
but  allowed  him  to  give  evidence  in  support  of  all  the  charges,  as  at 
least  furnishing  proof  of  a  felonious  intent.^  So,  where  a  shopboy 
was  indicted  for  robbing  his  mistress  of  six  shillings,  and  it  was 
proved  that  on  one  occasion,  when  the  till  contained  some  marked 
silver  and  other  money  amounting  in  all  to  12s.  6cZ.  the  prisoner 
went  to  it,  and  it  was  afterwards  found  to  contain  1  Is  6d.  only,  the 
prosecutrix  was  allowed  to  show  that,  on  subsequent  examinations 
of  the  till,  the  money  was  perceived  to  have  gradually  diminished, 


^  R.  V.  Cole,  1  Ph.  Ev.  477,  by  all  the  judges. 

^  7  W.  3,  c.  3,  I  8,  as  explained  in  Fost.,  C.  L.  245;  citing  Ambrose  Rook- 
wood's  case,  13  How.  St.  Tr.  139;  Lowick's  case,  id.  267;  Lawyer's  case,  16  id. 
93;  Deacon's  case,  18  id.  365;  Fost.,  C.  L.  9,  S.  C;  and  Wedderburne's  case, 
18  id.  425;  Fost.,  C.  L.  22,  S.  C. 

3  Vaughan's  case,  13  How.  St.  Tr.  485;  Fost.,  C.  L.  246. 

*  R.  V.  Ellis,  6  B.  &  C.  147,  148,  per  Bayley,  J.  ;  Roupell  v.  Haws,  3  Fost. 
&  Fin.  784;  R.  v.  Rearden,  4  Fost.  &  Fin.  76,  per  Willes.  J. 

'"  R.  V.  Bleasdale,  2  C.  &  Kir.  765,  per  Erie,  J.  See  R.  v.  Firth,  38  L.  J., 
M.  C.  54,  where  the  prisoner  was  indicted  for  stealing  gas;  11  Cox,  234,  S.  C; 
R.  V.  Hen  wood,  11  Cox,  526. 

(3179) 


314  WHAT  COLLATERAL  FACTS  ADMISSIBLE.  [PART  II. 

and  that,  on  the  prisoner  being  searched  8s.  of  the  marked  money 
was  found  on  his  person;  for  though  each  taking  was  a  separate 
felony,  they  were  all  so  connected  together  as  mutually  to  illustrate 
and  prove  each  other.' 

§  328.  So,  where  four  indictments  were  found  against  a  woman,  ^  307 
which  respectively  charged  her  with  poisoning  her  husband  and  two 
of  her  sons,  and  with  attempting  to  poison  a  third  son,  evidence  was 
tendered  on  the  trial  of  the  first  indictment,  that  arsenic  had  been 
taken  by  the  three  sons  a  few  months  after  their  father's  death  ; 
that  all  the  four  parties,  when  taken  ill,  exhibited  the  same  symp- 
toms ;  and  that  the  woman,  who  had  lived  in  the  same  house  with 
her  husband  and  children,  had  been  in  the  habit  of  preparing  their 
meals.  It  was  objected,  on  behalf  of  the  prisoner,  that  the  facts 
proposed  to  be  proved  took  place  subsequently  to  the  death  of  the 
husband,  and  were,  moreover,  calculated  to  create  a  suspicion  that 
the  prisoner  had  committed  three  other  felonies;  but  the  court  held 
that  the  evidence  was  clearly  admissible,  for  the  purposes  of  proving, 
first,  that  the  husband  died  of  arsenic,  and  next,  that  his  death  had 
not  been  accidental.^  So,  where  a  man  committed  three  burglaries 
in  one  night,  and  left  at  one  of  the  houses  property  taken  from  an- 
other, the  three  felonies  were  considered  so  connected,  that  the  court 
heard  the  history  of  them  all;^  and  the  same  course  was  adopted, 
where  the  prisoner  was  charged  on  three  indictments  with  firing  three 
stacks  belonging  to  separate  parties,  and  it  appeared  that  the  stacks, 
being  within  sight  of  each  other,  were  fired  about  the  same  time.* 


1  E.  V.  Ellis,  6  B.  &  C.  145. 

«  R.  V.  Geering,  18  L.  J.,  M.  C.  215,  per  Pollock,  C.  B.,  after  consulting 
Aklerson,  B.,  and  Talfourd,  J.;  R.  ?'.  Garner,  3  Fost.  and  Fin.  681,  per  Willes, 
J.,  &  Pollock,  C.  B.  ;  S.  C.  more  fully  reported,  4  Fost.  &  Fin.  34G;  R.  v. 
Cotton,  12  Cox,  400,  per  Archibald,  J.,  eS:  Pollock,  B.;  R.  i'.  Roden,  id.  630, 
per  Lush,  J.;  R.  v.  Heesom,  14  Cox,  40,  per  id.  See  post,  g  340.  But  see 
R.  V.  Winslow,  8  Cox,  397,  per  Martin  &  Wilde,  Bs.  See  R.  Flannagan,  15 
Cox,  463,  per  Butt,  J. 

«  Cited  by  Ld.  Ellenborough  in  R.  v.  Wylie,  1  N.  R.  94;  2  Lea.  Wd,  S.  C; 
R.  V.  Stonyer,  2  Russ.,"C.  &  M.  775,  per  Wightman,  J.  See,  also,  Alison,  Cr. 
L.  313,  314,  and  Wills,  Cir.  Ev.  58 — 60,  for  remarkable  cases  of  a  similar 
nature  which  occurred  in  Scotland. 

*  R.  V.  Long,  6  C.  &  P.  179,  per  Gurney,  B.,  R.  v.  Cobden,  3  Fost.  &  Fin. 
833,  per  Bramwell,  B. 

(3180) 


CHAP,  II.]  DOCTRINE  OF  ELECTION.  315 

§  329.  In  immediate  connexion  with  this  Subject,  though  not  g  308 
strictly  a  question  of  evidence,  may  be  noticed  the  doctrine  of  elec- 
tion. In  point  of  law,  no  objection  can  be  raised,  either  on  demurrer 
or  in  arrest  of  judgment,  though  the  defendant  or  defendants  be 
charged  in  different  counts  of  an  indictment  with  different  offences 
of  the  same  kind/  Indeed,  on  the  race  of  the  record,  every  count 
purports  to  be  for  a  separate  offence,"  and  in  misdemeanors  it  is  the 
daily  practice  to  receive  evidence  of  several  libels,  several  assaults, 
several  acts  of  fraud,  and  the  like,  upon  the  same  indictment.^  In 
cases  of  felony,  however,  this  rule  has,  from  motives  of  humanity, 
been  considerably  modified  ;  for  as  an  indictment  containing  several 
distinct  charges  is  calculated  to  embarrass  a  prisoner  in  his  defence, 
the  judges  in  the  exercise  of  a  sound  discretion,  are  accustomed  to 
quash  indictments  so  framed,  when  it  appears,  before  the  prisoner 
has  pleaded  and  the  jury  are  charged,  that  the  inquiry  is  to  include 
separate  crimes.  When  this  circumstance  is  discovered  during  the 
progress  of  the  trial,  the  prosecutor  is  usually  called  upon  to  elect 
one  felony,  and  to  confine  himself  to  that,*  unless  the  offences, 
though  in  law  distinct,  seem  to  constitute  in  fact  but  parts  of  one 
continuous  transaction.  Here  such  a  course  will  not  be  pursued,  as 
its  adoption  would  defeat  the  ends  of  justice.^ 

§  330.  Thus,  if  a  prisoner  is  charged  with  receiving  several  x  309 
articles,  knowing  them  to  have  been  stolen,  and  it  be  proved  that 
they  were  received  at  separate  times,  the  prosecutor  may  be  put  to 
his  election,  but  if  it  be  possible  that  all  the  goods  may  have  been 
received  at  one  time,  he  cannot  be  compelled  to  abandon  any  part 
of  the  accusation.'*     So,  where  several  prisoners  were  charged  in 


^  E.  V.  Kingston,  8  East,  41  ;  R.  v.  Jones,  2  Camp.  132,  per  Ld.  Ellen- 
borough.  As  to  election  in  civil  cases,  see  Howard  v.  Newton,  2  M.  &  Rob. 
509.  2  Young  v.  R.,  3  T.  R.  106,  per  Buller,  J.;  1  Lea.  511,  S.  C. 

=*  R.  v.  Jones,  2  Camp.  132,  per  Ld.  Ellenborough;  R.  r.  Levy,  2  Stark.  R. 
458.  See,  also,  R.  v.  Finacane,  5  C.  &  P.  551;  R.  v.  Collier,  id.  160.  But  see 
R.  V.  Barry,  4  Fost.  &  Fin.  392,  per  Martin,  B. 

*  R.  V.  Ward,  10  Cox,  42,  per  Byles,  J.  That  was  an  indictment  with  three 
counts  for  sending  three  threatening  letters.  Held,  that  prosecutor  must  elect 
to  proceed  on  one  count. 

^  Young  V.  R.,  3  T.  R.  106,  per  Buller,  J.;  R.  v.  Levy,  2  Stark,  R.  458;  R. 
V.  Birdseye,  4  C.  &  P.  386.     See,  also,  Anon.,  Ir.  Cir.  Rep.  165,  167,  n.  a. 

^R.  V.  Dunn,  1  Moo.  C.  C.  146;  R.  v.  Hinley,  2  M.  &  Rob.  524,  per 
Maule,  J. 

(3181) 


316  LIMITATION  IN  DOCTRINE  OF  ELECTION.  [PART  II. 

different  counts  of  the  same  indictment  with  committing  successive 
rapes  upon  the  prosecutrix,  and  aiding  each  other  in  turn,  she  was 
not  put  to  her  election,  but  the  court  heard  the  history  of  the  whole 
transaction;'  and  a  similar  course  was  adopted,  where  an  indict- 
ment contained  five  counts  for  setting  fire  to  five  houses  belonging 
to  different  owners,  and  it  appeared  that  the  houses  were  in  a  row, 
and  that  one  fire  burnt  them  all.^  So,  where  an  indictment,  in  the 
same  count,  charged  four  prisoners  with  assaulting  and  robbing 
two  persons,  who,  it  appeared,  were  walking  together  at  the  time 
when  they  were  attacked,  Chief  Justice  Tindal  refused  to  put  the 
prosecutors  to  elect  upon  which  felony  they  would  rely,  and  evidence 
being  given  as  to  the  entire  transaction,  the  prisoners  were  con- 
victed.^ In  another  case  the  defendant  was  charged  in  a  single 
count  with  uttering  twenty -hio  forged  receipts,  which  were  severally 
set  out  and  purported  to  be  signed  by  different  persons,  with  intent 
to  defraud  the  Crown.  His  counsel  contended  that  the  prosecutor 
ought  to  elect  upon  which  of  these  receipts  he  would  proceed,  as, 
amidst  such  a  variety,  it  would  be  almost  impossible  for  the  prisoner 
to  conduct  his  defence.  As,  however,  the  indictment  alleged  that 
they  were  all  uttered  at  one  and  the  same  time,  end  the  proof 
corresponded  with  this  allegation,  the  court  refused  to  interfere, 
and  all  the  judges  subsequently  held  that  a  proper  discretion  had 
been  exercised.* 


§  331.  In  the  case  of  embezzlement  by  clerks,  servants,  and  per-  g  310 
sons  employed  in  the  public  service,  or  in  the  police,  the  Legislature 
has  expressly  provided  that  distinct  acts,  not  exceeding  three,  may 
be  charged  in  one  indictment,  if  they  have  been  committed  against 
the  same  master,  and  within  the  period  of  six  calendar  months 
from  the  first  to  the  last  of  such  acts  ;  ^  this  exception  being 
suggested  by  the  difficulty  which  was  felt  in  procuring  a  conviction, 


1  R.  V.  Folkes,  1  Moo.  C.  C.  354  ;    R.  v.  Gray,  7  C.  «&  P.   164  ;   R.  v.   Parry, 
id.  836. 

*  R.  i\  Trueman,  8  C.  &  P.  727. 

'  R.  V.  Giddins,  C.  &  Marsh.  634. 

*  R.  I'.  Thomas,  2  Lea,  877;  2  East,  P.  C.  934,  S.  C. 

*24  &  25  v.,  c.  96,  §  71.     See  R.  v.  Balls,  40  L.  J.,  M.  C.  148;  1   Law  Rep., 
C.  C.  328;  &  12  Cox,  96,  S.  C. 

(3182) 


CHAP.  II.]        LIMITATION  OF  DOCTRINE  OF  ELECTION.         317 

where  tbe  inquiry  was  confined  to  one  offence.  Still,  if  the  prose- 
cutor, disregarding  the  statute,  indict  his  servant  for  a  single  act  of 
embezzlement,  be  must  confine  his  evidence  to  that  alone,  and,  if  it 
appear  that  the  prisoner  received  difierent  sums  on  different  days, 
and  made  a  false  account  respecting  each  sum  separately,  he  must 
elect  one  sum  and  one  day  on  which  to  proceed.^ 

§  332.  In  the  case  of  larceny  the  doctrine  of  election  has  been  g  311 
still  further  limited;  for  not  only  may  several  counts  be  inserted  in 
the  same  indictment  for  distinct  acts  of  stealing,  not  exceeding 
three,  which  may  have  been  committed  by  the  prisoner  against  the 
same  person  within  the  space  of  six  calendar  months;^  but  if,  upon 
the  trial  of  any  indictment  for  larceny,  the  property  alleged  to  have 
been  stolen  at  one  time  shall  turn  out  to  have  been  taken  at  differ- 
ent times,  the  prosecutor  shall  nci.  be  put  to  his  election,  unless  it 
shall  appear  that  there  were  more  than  three  takings,  or  that  more 
than  the  space  of  six  calendar  months  elapsed  between  the  first 
and  the  last  of  such  takings.^  In  either  of  these  last  events  the 
prosecutor  shall  be  required  to  elect  to  proceed  for  such  number  of 
takings,  not  exceeding  three,  as  have  occurred  within  six  months  of 
each  other.* 


§  333.  Another  salutary  exception  to  the  rule  of  election  is  recog-    §  312 
nised  with  respect  to  receivers  of  stolen  goods ;'^  and,  provided  the 
inquiry  relate  to  a  single  criminal  act,   one  or  more   counts   for 
feloniously  sealing  property  may  now  be  always  joined  in  the  same 

1  R.  V.  Williams,  G  C.  &  P.  626. 
,      ''24&25  v.,  c.  96,  g  5.  ^  Id.  §  6.  *  Id. 

^  24  &  25  v.,  c.  96,  §  92,  enacts,  that  "  in  any  idictment  containing  a  charge 
of  feloniously  stealing  any  property,  it  shall  be  lawful  to  add  a  count  or  several 
counts  for  feloniously  receiving  the  same,  or  any  part  or  parts  thereof,  knowing 
the  same  to  have  been  stolen  ;  and  in  any  indictment  for  felonioasly  receiving 
any  property,  knowing  it  to  have  been  stolen,  it  shall  be  lawful  to  add  a  count 
for  feloniously  stealing  the  same  ;  and  where  any  such  indictment  shall  have 
been  preferred  and  found  against  any  person,  the  prosecutor  .shall  not  be  put 
to  his  election,  but  it  shall  be  lawful  for  the  jury  who  shall  try  the  same  to 
find  a  verdict  of  guilty,  either  of  stealing  the  property,  or  of  receiving  the  same, 
or  any  part  or  parts  thereof,  knowing  the  same  to  have  been  .stolen  ;  and  if 
such  indictment  shall  have  been  preferred  and  found  against  two  or  more 
persons,  it  shall  be  lawful  for  the  jury,  who  shall  try  the  same,  to  find  all  or 

(3183) 


318  COLLATERAL  FACTS  WHEN  ADMISSIBLE.  [PART  II. 

indictment  with  one  or  more  counts,  charging  the  felonious  receipt 
of  the  same  property  by  the  prisoner,  he  well  knowing  it  to  have 
been  stolen.' 


§  334.  The  time  for  putting  the  prosecutor  to  his  election  is,  when  §  3!3 
it  shall  appear  by  the  evidence  that  the  two  or  more  supposed  occur- 
rences took  place  at  different  periods,  and  it  is  not  sufficient  for  this 
purpose  that  the  counsel  for  the  Crown,  in  his  opening  address,  has 
stated  that  the  fact  was  so,  because  the  witnesses,  on  being  examined, 
may  put  the  matter  in  a  different  light.'' 

§  335.  Upon  the  same  principle,  that  collateral  facts  are  only  §  3J4 
excluded,  when  they  cannot  raise  any  fair  inference  respecting  the 
matter  in  issue,  evidence  of  other  offences  committed  by  the  prisoner 
is  sometimes  admitted,  with  the  view  either  of  establishing  his 
identity,  or  of  corroborating  the  testimony  of  a  witness  in  some 
material  particular.  Thus,  on  an  information  for  a  libel,  where  the 
printer  swore  that  he  had  received  the  manuscript  from  the  de- 
fendant, and  had  returned  it  to  him,  and  notice  had  been  given  to 
the  defendant  to  produce  it,  other  libels  written  by  him  concerning 
the  same  subject  were  received  by  Lord  Kenyon,  as  evidence  to  cor- 
roborate the  statement  of  the  printer.^  So,  where  the  prisoner  was 
charged  with  robbing  the  prosecutor  of  a  coat  by  threatening  to 
accuse  him  of  an  unnatural  crime,  evidence  of  a  similiar,  but  ineffec- 
tual, attempt  on  the  following  evening,  when  the  prisoner  brought 
the  duplicate  pawn- ticket  for  the  coat,  and  which  ticket  was  found 
on  his  person  at  the  time  of  his  apprehension,  was  held  admissible, 
as  confirmatory  of  the  truth  of  the  prosecutor's  evidence  respecting 
what  occurred  on  the  former  day.*  So,  on  a  charge  of  highway* 
robbery,  the  prosecutor  was  allowed  to  rebut  an  alibi,  by  proving 


any  of  the  said  persons  guilty,  either  of  stealing  the  property,  or  of  receiving 
the  same,  or  any  part  or  jwrts  thereof,  knowing  the  same  to  have  been  stolen, 
or  to  find  one  or  more  of  the  said  persons  guilty  of  stealing  the  property,  and 
the  other  or  others  of  them  guilty  of  receiving  the  same,  or  any  part  or  parts 
thereof,  knowing  the  same  to  have  been  stolen." 

^  R.   V.   Beeton,   1   Den.  414  ;  2  C.  &  Kir.  9G0,  S.  C.     See  R.  v.  Hughes,  29 
L.  J.,  M.  C.  71.  2  R.  V.  Smart,  Ir.  Cir.  Rep.  15,  per  Bushe,  C.  J. 

*  R.  V.  Pearce.  Pea.  R.  75. 

*  R.  V.  Egerton,  R.  &  R.  375,  cited  by  Holroyd,  J.,  in  R.  v.  Ellis,  6  B.  &  C.  148. 

(3184) 


CHAP.  II.]  COLLATERAL  FACTS  WHEN  ADMISSIBLE.  319 

that,  shortly  before  the  attack  inade  upon  him,  and  near  the  same 
spot,  the  prisoner  had  robbed  another  person  ; '  and  even  had  no 
such  defence  been  set  up,  similar  evidence  would,  it  seems,  have 
been  admissible,  as  showing  at  least  that  the  prisoner  was  in  the 
neighbourhood  at  the  time  when  the  crime  was  committed.' 

§  336.  In  civil  causes,  too,  evidence  of  collateral  facts  is  some-  g  315 
times  received  for  the  purpose  of  confirming  the  testimony  of  wit- 
nesses. For  instance,  where  a  party  was  sued  on  a  bill  of  exchange, 
which  had  been  accepted  in  his  name  by  another  person,  and  evidence 
had  been  given  that  this  person  had  a  general  authority  from  the 
defendant  to  accept  bills  in  his  name,  the  court  held  that  an  admis- 
sion by  the  defendant  of  his  liability  on  another  bill  so  accepted, 
was  receivable  in  evidence,  in  order  to  confirm  the  witness  who  had 
spoken  to  the  general  authority.^ 


§  337.  A.nother  exception  to  the  rule  excluding  evidence  of  colla-  ^  316 
teral  facts  is  recognised,  where  the  question  is  a  matter  of  science,  and 
where  the  facts  proved,  though  not  directly  in  issue,  tend  to  illus- 
trate the  opinions  of  scientific  witnesses.  Thus,  where  the  point  in 
dispute  was,  whether  a  sea-wall  had  caused  the  choking  up  of  a  har- 
bour, and  engineers  were  called  to  give  their  opinions  as  to  the  effect 
of  the  wall,  proof  that  other  harbours  on  the  same  coast,  where  there 
were  no  embankments,  had  begun  to  be  choked  about  the  same  time 
as  the  harbour  in  question,  was  admitted,  as  such  evidence  served  to 
elucidate  the  reasoning  of  the  skilled  witnesses.*  So,  if  the  point  in 
dispute  were  whether  the  defendant  was  or  was  not  on  a  certain  occa- 
sion in  his  right  mind,  it  is  clear  that,  after  proof  given  by  a  medical 
man,  or  admission  made  by  counsel,  that  madness  was  often  of  an 
hereditary  character,  evidence  tending  to  show  that  none  of  the  defen- 
dant's ancestors  or  near  relations  had  been  insane,  would  be  admis- 


1  R.  V.  Briggs,  2  M.  &  Rob.  199,  per  Alderson,  B. 

'^  R.  V.  Rooney,  7  C.  &  P.  517,  per  Littledale,  J.  See,  also,  R.  v.  Fursey,  6 
C.  &  P.  81,  per  Parke  &  Gaselee,  Jse. 

*  Llewellyn  v.  Winckworth,  13  M.  &  "W.  598.  See  Hollingham  v.  Head, 
27  L.  J.,  C.  P.  241;  4  Com.  B.,  N.  S.  388,  S.  C. ;  Morris  v.  Bethell,  4  Law 
Rep.,  C.  P.  765;  ,38 L.  J.,  C.  P.  377,  S.  C;  5  LaAV  Rep.,  C.  P.  47,  S.  C. 

♦  Folkes  V.  Chadd,  3  Doug.  157;  M'Fadden  v.  Murdock,  I.  R.,  1  C.   L.  211. 

(3185) 


320  COLLATERAL  FACTS  WHEN  ADMISSIBLE.  [PAET  11. 

sible  in  support  of  the  negative  proposition.  So,  on  a  question  of  dis- 
puted paternity,  once  prove  as  a  matter  of  science  that  children  are 
apt  to  inherit  the  features  or  general  appearance  of  their  pjii-ents,  and 
then,  as  a  matter  of  course,  evidence  will  be  received  of  personal 
resemblance  between  the  party  in  question  and  his  alleged  father.' 

§  338.  In  some  cases  evidence  has  been  received  of  facts  which  ?  317 
happened  before  or  after  the  principal  transaction,  and  which  had 
no  direct  or  apparent  connexion  with  it  ;  and,  consequently,  their 
admission  might  seem,  at  first  view,  to  constitute  another  exception 
to  this  rule.  But  in  these  cases,  the  knowledge  or  good  faith,  or 
intent  of  the  party  was  a  material  fact,  on  which  the  evidence,  ap- 
parently collateral,  and  foreign  to  the  main  subject,  had  a  direct 
bearing.  The  admission,  therefore,  of  such  evidence,  instead  of 
being  an  exception  to  the  rule,  falls  strictly  within  it.  Thus,  where 
the  question  was,  whethev  the  acceptor  of  a  bill  of  exchange  either 
knew  that  the  name  of  the  payee  was  fictitious,  or  else  had  given  to 
the  drawer  a  general  authority  to  draw  bills  on  him  payable  to  ficti- 
tious persons,  evidence  was  admitted  to  show  that  he  had  accepted 
other  bills,  drawn  in  like  manner,  before  it  was  possible  to  have 
transmitted  them  from  the  place  at  which  they  bore  date.^  So,  in 
an  action  for  an  assault  and  consequent  injury,  where  evidence  for 
the  defence  was  given  that  the  plaintiff  had  ascribed  her  injury  to  a 
previous  accident,  she  was  allowed  to  show  that  in  fact  no  such 
accident  had  ever  occurred.^  So,  in  any  trial,  evidence  will  be 
admissible  to  prove  or  disprove  any  attempt  at  subornation  of 
witnesses.* 

§  339.  So,  in  an  action  for  fraudulently  representing  that  a  trader  §  317 
was  trustworthy,  whereby  the  plaintiff  was  induced  to  sell  him  goods, 
and  thus  lost  the  price  of  them,  the  court  permitted  the  defendant 
to  call  fellow -townsmen  of  the  trader  to  state,  that,  at  the  time  when 
the  representation  was  made,  the  man  was,  according  to  their  belief, 
in  good  credit.^     So,  in  an  action  for  work  and  labour  in  fixing 

1  Bagot  V.  Bagot,  1  L.  R.,  Ir.  308. 
"  Gibson  v.  Hunter,  2  H.  Bl.  288. 

3  Melhuish  v.  Collier,  15  Q.  B.  878.  *  Id. 

s  Sheen  v.  Bumpstead,  1  H.  &  C.    358;  aflfd.    in    Ex.  Ch.,   2   New   R.    370; 
2H.  &  C.  193;  32  "L.  J.,  Ex.  271,  S.  C. 

(3186) 


CHAP.  II.]  COLLATERAL  FACTS  WHEN  ADMISSIBLE,  321 

railings  to  certain  houses  belonging  to  the  defendant,  where  the 
defence  was  that  the  plaintifF  had  given  credit  to  a  third  person  by 
whom  the  houses  were  built  under  a  contract,  the  builder  was 
allowed  to  state  that  the  order  was  given  by  him  on  his  own  account, 
and  not  as  agent  for  the  defendant ;  and  that  the  defendant  had 
actually  paid  him  for  the  building  of  the  houses,  including  the 
charge  for  the  railings.  This  evidence  of  payment  was  objected  to, 
but  the  court  held  that  it  was  clearly  admissible,  as  tending  to  show 
the  bona  fides  of  the  defence.'  In  another  case,  where  a  plaintifP 
sought  to  set  aside  a  contract  on  the  ground  of  his  having  been 
insane  when  it  was  made,  the  court  held,  upon  an  issue  as  to  whether 
or  not  the  defendant  was  at  the  time  aware  of  the  insanity,  that 
evidence  of  the  plaintiff's  conduct,  at  different  times  both  before  and 
after  the  date  of  the  contract,  was  admissible,  for  the  purpose  of 
showing  that  the  madness  was  of  such  a  character  as  must  have 
been  apparent  to  any  one,  who  had  had  opportunities  of  observation 
like  those  afforded  to  the  defendant.^ 


§  340.  Again,  in  an  action  against  a  company  to  recover  a  sum  s  3J8 
of  money  which  the  plaintiff  had  paid  them  in  consequence  of  a  fraud 
alleged  to  have  been  committed  by  their  agent  with  their  knowledge 
and  for  their  benefit,  evidence  of  similar  frauds  perpetrated  on  other 
persons  by  the  same  agent  with  the  knowledge  and  for  the  benefit 
of  the  defendants,  was  held  to  be  admissible  in  proof  of  fraudulent 
complicity  in  the  case  before  the  Court.^  So,  in  actions  for  false 
representation,  where  the  question  twYns  on.  fraudulent  intent,  other 
mis-statements  besides  those  laid  in  the  statement  of  claim  will  be 
admissible  in  evidence,  for  the  purpose  of  showing  that  the  defen- 
dant was  actuated  by  dishonest  motives.*  So,  in  the  Divorce 
Division,  in  a  suit  for  dissolution  of  marriage,  evidence  of  acts  of 
adultery,  subsequent  to  the  date  of  the  latest  act  charged  in  the 
petition,  will  be  admissible,  for  the  purpose  of  shewing  the  character 


'  Gerish  v.  Cliartier,  1  Com.  B.  13. 

*  Beavan  v.  M'Donnell,  23  L.  J.,  Ex.  326;  10  Ex.  R.  184,  S.  C. 

^  Blake  t'.  Albion  Life  Ass.  Co.,  L.  R.,  4  C.  P.  D.   94;  48  L.  J.,  C.  P.   169; 
&  14  Cox,  246,  S.  C.     See  ante,  |  328. 

*  Huntingford  v.  Massey,  1  Fost.  &  Fin.  690,  per  Crompton,  J. 
21   LAW  OF  EVID.— V.  I.  (3187) 


322  COLLATERAL  FACTS  WHEN  ADMISSIBLE.  [PART  II. 

of  previous  acts  of  improper  familiarity.'  So,  in  actions  for  malicious 
arrest,  the  jury  are  always  at  liberty  to  draw  an  inference  of  malice 
ex  antecedentibus  et  consequentibus.^  In  actions,  too,  for  defama- 
tion, other  words  written  or  spoken  by  the  defendant,  either  before,' 
or  after,  those  declared  upon,  or  even  after  issue  joined,*  are  ad- 
missible as  evidence  of  actual  malice  or  of  deliberate  publication;^ 
and  for  this  purpose  it  makes  in  general  no  difPerence,  whether  the 
language  on  which  the  action  is  founded  be  equivocal  or  clear,* — 
whether  the  collateral  words  tendered  in  evidence  be  addressed  to 
the  same  party,  to  whom  the  slander  is  alleged  in  the  statement  of 
claim  to  have  been  spoken,  or  to  a  stranger,' — or  whether  those 
words  be  themselves  actionable  or  not.* 

1  Boddy  V.  Boddy,  30  L.  J.,  Pr.  &  Mat.  23. 

2  Spencer  v.  Thompson,  6  Ir   Law  R.,  N.  S.  537,  571. 

'  Long  V.  Barrett,  7  Ir.  Law  R.  439  ;  Barrett  v.  Long,  8  Ir.  Law  R. 
331  ;  3  H.  of  L.  Cas.  395,  S.  C.  as  affd.  in  Ex.  Ch.  and  Dom.  Proc.  That  was 
an  action  of  libel,  and  the  plaintiff,  to  show  the  animus  of  the  defendant, 
tendered  in  evidence  other  libels  published  by  him  against  the  plaintiff  six 
years  before.  These  were  held  to  be  admissible,  the  jury  having  been 
cautioned  not  to  give  damages  respecting  them.  Moreover,  the  omission  to 
give  such  caution  will  not  amount  to  misdirection,  Darby  v.  Ouseley,  1  H. 
&N.  1. 

*  Pearson  v.  Le  Maitre,  6  Scott,  N.  R.  607  ;  5  M.  &  Gr.  700,  S.  C.  In  that 
case  a  letter  was  admitted,  written  subsequently  to  the  commencement  of  the 
action,  and  fourteen  months  after  the  libel  complained  of.  See,  also,  Macleod 
V.  Wakley,  3  C.  &  P.  311,  where  the  paragraph  admitted  by  Ld.  Tenterden  was 
published  only  two  days  betore  the  trial;  and  Plunkett  v.  Cobbett,  5  Esp.  136, 
where,  the  defendant  being  the  editor  of  a  weekly  periodical,  proof  that  a  copy 
of  the  paper  containing  the  libel  was  sold  after  action  brought,  was  admitte(i 
by  Ld.  Ellenborough  as  evidence  of  deliberate  publication. 

^  Pearson  v.  Le  Maitre,  6  Scott,  N.  R.  607 ;  5  M.  &  Gr.  700,  S.  C. ;  Barwell 
V.  Adkins,  1  M.  &  Gr.  807,  2  Scott,  N.  R.  11,  S.  C. ;  Perkins  v.  Vaughan, 
4  M.  &  Gr.  988;  Hemmings  v.  Gasson,  1  E.  B.  &  E.  346  ,  Rustell  v.  Mac- 
quister,  1  Camp.  49,  n.,  per  Ld.  Ellenborough.  Charlter  v.  Barret,  Pea.  R.  22, 
per  Ld.  Kenyon;  Lee  v.  Huson,  id  166,  per  id.;  Scott  v.  lA.  Oxford,  id.  3rd 
ed.  170,  n.  a,  per  Lawrence,  J.,  B.  N  P  7,  Delegal  v.  Highley,  8  C.  &  P.  444, 
per  Tindal,  C.  J. ;  Jackson  v,  Adams,  2  Scott,  599. 

*  See  n.  8,  below. 

'  Pearson  v.  Lemaitre,  6  Scott,  N.  R.  607;  5  M.  &  Gr.  700,  S.  C;  Mead  v. 
Daubigny,  Pea.  R.  125,  per  Ld   Kenyon. 

«  Pearson  v.  Lemaitre,  6  Scott,  N.  R.  607;  5  M.  &  Gr.  700,  S.  C;  question- 
ing Pearce  v.  Ornsbv,  1  M.  &  Rob.  455,  and  Symmons  v.  Blake,  id.  477. 
Tindal,  C.  J.,  in  pronouncing  the  judgment  of  the  court,  states  the  correct  rule 
to  be,  ''  That  either  party  may,  with  a  view  to  damages,  give  evidence  to  prove 
or  di.sprove  the  existence  of  a  malicious  motive  in  the  mind  of  the  publisher  of 
defamatory  matter;  but  that,  if  the  evidence  given  for  that  purpose  establishes 
another  cause  of  action,  the  jury  shall  be  cautioned  against  giving  any  damages 

(3188) 


CHAP  II.]  COLLATERAL   FACTS   WHEN   ADMISSIBLE.  323 

§  341.  The  case  of  Warwick  v.  Foulkes'  will  illustrate  this  doc-  I  r,!"^ 
trine.  That  was  an  action  of  trespass  for  false  imprisonment,  to 
which  the  defendant  pleaded  first,  not  guilty,  and  secondly,  a  justi- 
fication, alleging  that  the  plaintiff  had  committed  a  felony.  This 
last  plea  was  abandoned  and  apologised  for  at  the  trial;  but  the 
court  held  that,  in  estimating  the  damages  under  the  first  issue,  the 
jury  might  take  into  account  the  fact  of  a  jurisdiction  having  been 
pleaded,  because  the  placing  such  a  plea  on  the  record  was  a  per- 
sisting in  the  charge,  which,  under  the  circumstances,  was  strong 
evidence  of  malice.  So,  where  on  the  trial  of  an  action  for  slander, 
to  which  the  general  issue  and  a  jurisdiction  were  pleaded,  the 
plaintiff  expressed  his  willingness  to  accept  an  apology  and  nominal 
damages  if  the  plea  of  justification  were  withdrawn,  but  the  defen- 
dant refused  to  abandon  this  plea,  though  he  offered  no  evidence  in 
support  of  its  truth,  the  court  held  that  the  jury  might  consider 
the  defendant's  conduct,  not  only  with  reference  to  the  question  of 
damages,  but  as  furnishing  evidence  of  express  malice,  and  thus 
rendering  the  words  proved  actionable,  though  they  were  prima 
facie  privileged  communications.^ 

§  342.  If,  however,  to  an  action  for  a  libel,  the  defendant  were  to  «  3^9 
set  up  as  his  defence  a  privileged  communication  and  justification, 
the  jury,  in  forming  an  opinion,  under  the  first  issue,  should  not, 
as  it  seems,  take  into  consideration  the  circumstance  that  the  justi- 
fication had  been  pleaded,  provided  that  such  defence  were  openly 
abandoned  at  the  trial.^  So,  if  it  clearly  appear  that  other  libels 
are  offered  in  evidence,  merely  with  the  view  of  unfairly  recovering 


in  respect  of  it ;  and  if  such  evidence  is  offered  merely  for  the  purpose  of 
obtaining  damages  for  such  subsequent  injury,  it  will  be  properly  rejected. 
And  perhaps  the  cases  of  Pearce  v.  Ornsby  and  Symmons  v.  Blake  went  no 
farther  than  this.  *  *  Upon  principle,  we  think,  that  the  spirit  and  inten- 
tion of  the  party  publishing  a  libel  are  fit  to  be  considered  by  a  jury,  in  esti- 
mating the  injury  done  to  the  plaintiff,  and  that  evidence  tending  to  prove 
them  cannot  be  excluded,  simply  because  it  may  disclose  another  and  different 
cause  of  action."  5  M.  &  Gr.  719,  720.  See,  also,  Russell  v.  filacquister, 
1  Camp.  49,  n.,  where  Ld.  Ellenborough  remarked,  that  the  distinction 
between  words  actionable  and  not  actionable  was  not  founded  on  any  jirin- 
ciple  ;  and  Camfield  v.  Bird,  3  C.  &  Kir.  oQ^  per  Jervis,  C.  J. 

1  12  M.  &  W.  507. 

"^  Simpson  v.  Robinson,  12  Q.  B.  511      *  Wilson  r.  Robinson,  7  Q.  B.  68. 

(3189) 


324  COLLATERAL   FACTS   WHEN   ADMISSIBLE.  [pART  II. 

damages  for  the  injury  sustained  by  their  publication,  they  will 
properly  be  rejected;'  and  it  seems  that  no  subsequent  libels  will 
be  admitted,  unless  they  directly  refer  to  the  defamatory  language 
set  out  in  the  statement  of  claim,  or  at  least  relate  to  the  same 
subject  matter.^ 

§  343.  Not  only  is  other  defamatory  matter  admissible  for  the    ?  320 
purpose  of  showing  the  animus  of  the  defendant,   but  the  77iode 
in  which  such  matter  was  published  may  also  be  highly  material; 
as  for  instance,  if  printed  placards  were  sent  to  the  plaintiff's  house, 
or  paraded  before  his  door.^ 

§  344.  On  the  same  principle  the  defendant,  in  mitigation  of  §  321 
damages,  has  been  allowed  to  give  evidence  palliating,  though  not 
justifying,  his  act  of  publishing  a  libel,  as,  for  instance,  that  he 
copied  it  from  another  newspaper,*  or  that  he  had  been  pj'ot'o/ced  to 
act  as  he  had  done  by  the  conduct  of  the  plaintiff,  who  had  previously 
published  libels  of  him  respecting  the  same  subject  matter.  But  in 
this  last  case  some  proof  must  be  given  that  the  libels  published  by 
the  plaintiff  had  first  come  to  the  knowledge  of  the  defendant,^ 
since  they  are  admissible,  not  on  the  ground  of  any  right  to 
set  oft  one  libel  against  another,®  but  simply  from  an  indulgent 

'  See  cases  cited,  ante,  in  n  **,  p,  322  ;  Stuart  v.  Lovell,  2  Stark  E.  95  ; 
Defries  v.  Davis,  7  C.  &  P.  112. 

■^  Fiunerty  v.  Tipper,  2  Camp.  72,  per  Sir  J.  Mansfield. 

^  Bond  V.  Douglas,  7  C.  &  P.  626,  per  Ld.  Abinger 

*  Saunders  r.  Mills,  6  Bing.  213  cited  by  Tindal,  C.  J.,  in  Pearson  v.  Le 
Maitre,  5  M.  &  Gr.  719.  In  Talbutt  v.  Clark,  2  M.  &  Rob.  312,  Ld.  Denman 
would  not  permit  the  editor  of  a  newspaper  to  show,  in  mitigation  of  damages, 
that  the  libel  was  published  on  the  communication  of  a  correspondent ;  and 
referring  to  a  case  which  was  probably  Saunders  v.  Mills,  his  Lordship 
observed,  that  '•  that  decision  had  been  very  much  questioned."  However, 
by  the  recognition  of  Saunders  i).  Mills  in  Pearson  v.  Le  Maitre,  the  case  of 
Talbut  11.  Clark  wiuld  seem  to  be  indirectly  overruled.  See,  also,  East  v. 
Chapman,  M.  &  M.  46 ;  2  C.  &  P.  570,  S.  C,  per  Abbott,  C.  S. ;  Charlton  v. 
Watson,  6  C.  &  P.  385,  per  Patteson,  J. ;  Creevy  v.  Carr,  7  C.  &  P.  64. 

5  Watts  V.  Fraser,  7  A.  &  E.  223  ;  7  C.  &  P.    369,  S.   C. ;  Tarpley  v.  Blabey, 

2  Bing.  N.   C.   437 ;   2  Scott,   642  ,    7  C.   &  P.     395,    S.   C. ;    May  v.    Brown, 

3  B.  &  C.  113  ;  4  D.  &  R.  670,  S.  C. ;  Wakley  v.  Johnson  Ry.  &  M.  422  ; 
Fiunerty  v.  Tipper,  2  Camp.  72.     See  Richards  v.  Richards,  2   M.  &  Rob.  557. 

"  AVatts  V.  Fraser,  7  C.  &  P  370,  per  Ld.  Denman.  In  Judge  v.  Berkeley, 
cited  id.  371,  n.  a,  Burrough,  J  ,  allowed  the  defen  dant,  in  an  action  of  assault, 

(3190) 


CHAP.  II.  ]  COLLATE-RAL  FACTS  WHEN  ADMISSIBLE.  325 

consideration  of  the  weakness  of  human  nature,  which  leads  a 
man,  when  his  feelings  are  exasperated,  to  say  "  that  he  should 
be  sorry  for."  Moreover,  in  all  cases  of  this  kind,  where  the  de- 
fendant, without  asserting  the  truth  of  his  statement,  attempts  to 
reduce  the  damages  by  referring  to  the  circumstances  which  in- 
fluenced his  conduct,  he  can  now  only  do  so  in  one  of  two  ways  ; 
either  he  must  obtain  the  leave  of  a  judge,  or,  a  week  before  the 
trial,  he  must  furnish  the  plaintiff  with  particulars  of  the  matters 
on  which  he  relies.  The  New  Rule  on  this  subject  is  as  follows  : — 
"  In  actions  for  libel  or  slander,  in  which  the  defendant  does  not 
by  his  defence  assert  the  truth  of  the  statement  complained  of,  the 
defendant  shall  not  be  entitled  on  the  trial  to  give  evidence  in  chief, 
with  a  view  to  mitigation  of  damages,  as  to  the  circumstances 
under  which  the  libel  or  slander  was  published,  or  as  to  the 
character  of  the  plaintiff,  without  the  leave  of  the  judge,  unless 
seven  days  at  least  before  the  trial  he  furnishes  particulars  to  the 
plaintiff  of  the  matters  as  to  which  he  intends  to  give  evidence.'" 

§  345.  Evidence  of  this  kind  is  very  frequently  admitted  in  «  325 
criminal  proceedings.  Thus,  on  an  indictment  for  knowingly 
uttering  a  forged  document,  or  a  counterfeit  bank  note,  or 
counterfeit  coin,  proof  of  the  possession,  or  of  the  prior  or  sub- 
sequent^ utterance,  either  to  the  prosecutor  himself  or  to  other 
persons,  of  other  false  documents  or  notes,  or  bad  money,  though 
of  a  different  description,^  and  though  themselves  the  subjects  of 
separate  indictments,*  is  admissible  as  material  to  the  question  of 


to  prove,  in  mitigation  of  damages,  a  series  of  libellous  articles  published 
respecting  him  by  the  plaintiff,  one  of  which  appeared  on  the  day  of  the 
assault. 

'  Rules  of  Sup.  Ct.,  1883,  Ord.  XXXVI.,  R.  37. 

•^  R.   V.  Forster,  Pearce  &  D.  456.     This  case  disposes  of  a  doubt  raised  in  R. 
V.  Taverner,  Carr.  Supp.  195;  4  C.  &  P.  413,  n.  a,  S.  C. ;  and  in  R.  v.  Smith, 
4  C.  &  P.  411 ;  as  to  whether  evidence  of  subsequent  utteriugs  would  be  admis-  ' 
sible,  if  the  notes  or  com  were  of  a  different  description. 

=*  R.  1!.  Harris,  7  C.  &  P.  429,  by  all  the  judges;  R.  v.  Forster,  Pearce  &  D. 
456.  Doubts  had  been  entertained  on  this  subject  by  some  of  the  judges,  in 
R.  V.  Millard,  R.  &  R.  245,  but  the  evidence  was  admitted  in  Sunderland's, 
Hodgson's,  Kirkwood's,  and  Martin's  cases,  1  Lew.  C.  C.  102 — 104.  The  same 
evidence  is  admissible  in  Scotland;  Alison,  Cr.  L.  420. 

*  R.  V.  Hough,  R.  &  R.  122;  R.  v.  Weeks,  8  Cox,  455;  Kirkwood's  case,  1 

(3191) 


32G  COLLATERAL  FACTS  WHEN  ADMISSIBLE.  [pART  II, 

guilty  knowledge  or  intent-^  but  in  these  cases  it  is  essential  to 
prove  distinctly  that  the  instruments  offered  in  evidence  of  guilty 
knowledge  were  themselves  forged.^  It  seems  also,  that  though 
the  prosecutor  may  prove  the  uttering  of  other  forged  notes  by 
the  prisoner,  and  his  conduct  at  the  time  of  uttering  them,  he 
cannot  proceed  to  show  what  the  prisoner  said  or  did  at  another 
time,  with  respect  to  such  uttering;  for  these  are  collateral  facts, 
too  remote  for  any  reasonable  presumption  of  guilt  to  be  founded 
upon  them,  and  such  as  the  prisoner  cannot  by  any  possibility  be 
pi'epared  to  contradict/ 


§  346.  This  laxity  of  evidence,  which  has  long  prevailed  in  2  303 
charges  of  uttering,  and  of  one  or  two  offences  of  a  cognate 
character,*  has  also,  with  respect  to  the  receivers  of  stolen 
goods,  been  expressly  sanctioned  by  the  Legislature.  Thus, 
"The  Prevention  of  Crimes  Act,  1871,"  *  in  §  19,  contains  an 
enactment  that,  "where  proceedings  are  taken  against  any  person 
for  having  received  goods  knowing  them  to  be  stolen,  or  for  having 
in  his  possession  stolen  prof)erty,  evidence  may  be  given  at  any 


Lew.  C.  C.  103,  per  Littledale,  J. ;  Martin's  case,  id.  104,  per  id. ;  R.  v.  Aston, 
2  Russ.  C.  &  M.  407,  per  Alderson,  B. ;  R.  i;.  Lehvis,  id.,  per  Ld.  Denman,  who 
observed,  that  "he  could  not  conceive  that  the  relevancy  of  the  fact  to  the 
charge  could  be  effected  by  its  being  the  subject  of  another  charge.''  Contra 
R.  V.  Smith,  2  C.  &  P.  633,  per  Vaughan,  B. 

1  R.  V.  Wylie,  IN.  R.  92,  94;  2  Lea.  983,  S.  C,  nom.  R.  v.  Whiley;  R.  v. 
Ball,  1  Camp.  324;  R.  &  R.  132,  S.  C;  R.  v.  Harrison,  2  Lew.  C.  C.  118,  per 
Taunton,  J.,  and  Alderson,  B. ;  R.  r.  Green,  3  C.  &  Kir.  209,  per Cresswell,  J.; 
R.  V.  Nisbett,  6  Cox,  320,  per  AVilliams,  J. ;  R.  v.  Salt,  3  Fost.  «*fc  Fin.  834,  per 
Williams,  J.;  R.  v.  Colclough,  15  Cox,  92,  Jr.  C.  C;  10  L.  R.,  Ir.  241,  S.  C. 

''  R.  V.  Millard,  R.  &  R,  245. 

»  R.  V.  Phillips,  1  Lew.  C.  C.  105,  per  Bayley,  J. ;  R.  v.  Cooke,  8  C.  &  P.  586, 
per  Patteson,  J.  Contra,  R.  v.  Forbes,  7  C.  &  P.  224,  per  Coleridge,  J.  See  R. 
V.  Brown,  2  Fost.  &  Fin.  559. 

*  E.  g.  the  obtaining  money  by  falsely  pretending  to  a  pawnbroker  that  a 
spurious  chain  was  silver;  R.  v.  Roebuck,  Dear.  &  Bell.  24,  26;  R.  v.  Francis, 
43  L.  J.,  M.  C.  97;  2  Law  Rep.,  C.  C.  128,  12  Cox,  612,  S.  C.  The  doctrine, 
however,  does  not  extend  to  ordinary  indictments  for  false  pretences;  R.  v. 
Holt,  30  L.  J.,  M.  C.  11;  Bell,  C.  C.  280,  S.  C;  8  Cox,  411,  S.  C.  Still,  it  has 
been  applied  to  cases  of  arson  with  intent  to  defraud  insurance  companies;  R. 
V.  Gray,  4  Fost.  &  Fin.  1102,  per  Willes.  J.,  &  Martin,  B.;  sed  qu. 

*  34  &  35  V.,  c.  112. 

(3192) 


CHAP.  11.]  COLLATERAL  FACTS  WHEN  ADMISSIBLE.  327 

stage  of  the  proceedings  that  there  was  found'  in  the  possession  of 
such  person  other  property  stolen  within  the  preceding  period  of 
twelve  months,^  and  such  evidence  may  be  taken  into  consideration 
for  the  purpose  of  proving  that  such  person  knew  the  property  to 
be  stolen,  which  forms  the  subject  of  the  proceedings  taken  against 
him." 

§  347.  Notwithstanding  the  above  enactment,  and  perhaps,  even,  ?  323a 
in  consequence  of  it,  the  judges  may  still  decline  to  recognise 
the  doctrine. under  discussion  in  ordinary  criminal  trials.^  Thus 
much,  however,  may  be  safely  predicated,  that,  on  a  charge  of  send- 
ing a  threatening  letter,  other  letters  written  by  the  prisoner,  both 
before  and  after  the  one  in  question,  are  admissible  to  explain  its 
meaning  ;*  on  an  indictment  for  malicious  shooting,  if  it  be  doubtful 
whether  the  shot  was  fired  by  accident  or  design,  proof  may  be  given 
that  the  prisoner  at  another  time  intentionally  shot  at  the  same 
person;^  and  in  indictments  for  murder,  while  evidence  of  former 
menances  or  quarrels  will  have  an  important  tendency  towards  sup- 
porting the  legal  inference  of  malice,®  proof  of  expressions  of  kind- 
ness or  of  friendly  acts  towards  the  deceased  will  be  entitled  to 
equal  weight  as  raising  a  counter  presumption.^ 

§  348.  In  like  manner,  on    an    indictment    for   robbery,   where    ^  324 
it  appeared  that  the   prisoners  had  formed  part  of  a  mob,  who 
went  into  the  prosecutor's  house,  and   that  one  of  the  mob  had 

^  It  is  not  sufficient  under  these  words  to  prove  that  the  prisoner  had  very 
recently  dealt  with  other  stolen  property;  R.  v.  Drage,  14  Cox,  85,  per  Braui- 
well,  L.  J.;  R.  v.  Carter,  decided  hy  Ct.  of  Cr.  App.,  5  Apl.  1884;  L.  R.,  12 
Q.  B.  D.  522;  53  L.  J.,  M.  C.  96,  S.  C. ;  and  15  Cox,  448." 

^  This  evidence  will  be  admissible,  though  the  property  so  found  may  be 
the  subject  of  another  indictment  against  the  prisoner  at  the  same  assizes; 
R.  V.  Jones,  14  Cox,  3. 

•^  See  and  compare  R.  v.  Fairie,  8  E.  &  B.  486;  R.  v.  Winslow,  8  Cox,  397; 
R.  V.  Geering,  18  L.  J.,  M.  C.  215,  cited  ante,  I  327;  R.  v.  Oddy,  2  Den.  264; 
R.  V.  Sirrell,  cited  in  id.  267;  R.  v.  Dunn,  1  Moo.  C.  C.  146;  R.  v.  Nicholls,  1 
Fost.  &  Fin.  51.  See,  also,  R.  v.  Flannagan,  15  Cox,  463,  per  Butt,  J.,  follow- 
ing R.  V.  Geering.  *  R.  v.  Robinson,  2  East,  P.  C.  1110,  1112. 

*  R.  i\  Voke,  R.  &  R.  531.  For  other  examples,  see  R.  v.  Mogg,  4  C.  &  P. 
364;  R.  II.  Dossett,  2  C.  &  Kir.  306,  per  Maule,  J.;  R.  v.  Richardson,  2  Fost. 
&  Fin.  343;  8  Cox,  448,  S.  C;  R.  t;.  Harris,  4  Fost.  &  Fin.  342.  See,  also, 
ante,  ^  327,  328. 

^  «  See  R.  V.  Hagan,  12  Cox,  357.  '  1  Ph.  Ev.  470,  476. 

(3193) 


328  EVIDENCE  OF  GENERAL  CHARACTER.  [PART  II. 

civilly  advised  him  to  give  them  something  to  prevent  mischief, 
evidence  that  this  mob,  in  the  presence  of  some  of  the  prisoners, 
had  demanded  money  at  other  houses  on  the  same  day,  was 
admitted,  as  tending  to  prove  that  the  advice  was  not  given  bona 
tide,  but  was  in  reality  a  polite  mode  of  committing  a  robbery.^ 
This  last  case  difPers  from  those  just  cited  in  one  respect, 
namely,  that  the  acts  given  in  evidence  were  not  committed  by  the 
prisoners  themselves,  but  only  by  some  of  the  mob  with  whom  they 
were  connected.  The  principle,  however,  is  the  same;  for  the  law 
has  wisely  provided,  that  where  several  evil  doers  conspire  together 
to  effect  some  unlawful  purpose,  the  acts  done  by  one  of  the  party 
in  furtherance  of  the  common  design  shall  be  considered  as  done 
by  all.' 

§  349.  To  this  rule  may  be  referred  the  admissibility  of  evidence  §  305 
respecting  the  general  character  of  individuals.  Such  evidence  is 
tendered  for  the  purpose  of  either  raising  a  presityn^p^ion  of  innocence 
or  guilt,  or  affecting  the  amount  of  damages,  or  of  impeaching  or 
supporting  the  veracity  of  a  witness;^  the  first  object  being  chiefly 
confined  to  criminal  prosecutions,  and  the  second  to  civil  causes, 
while  the  third  is  equally  applicable  to   both  modes  of  procedure. 

§  350.  The  term  "  character,"  as  here  used,  is  not, — as  some  of  g  325^ 
our  ablest  judges  have  considered  it  to  be,* — synonymous  with 
'"disposition,"  but  it  simply  means  "reputation,"  or  the  general 
credit  which  a  man  has  obtained  in  public  opinion.^  A  witness, 
therefore,  who  is  called  to  speak  to  character, — unlike  a  master  who 
is  asked  for  the  character  of  his  servant, — cannot  give  the  result 
of  his  own  personal  experience  and  observation,  or  express  his 
own  opinion,  but,  in  strict  law  he  must  confine  himself  to  evidence 
of  mere  general  repute."     This  rule, — which  appears  to  rest  rather 


'  R.  V.  Wink  worth,  4  C.  &  P.  444,  per  Parke,  J.,  with  the  concurrence  of  Ld. 
Tenterden,  Alderson,  J.,  and  Vaughan,  B. 

2  R.  V.  Watson,  32  How.  St.  Tr.  7;    R.  v.  Hardy,  24   id.  704;  R.  v.  Salter,  5 
Esp.  125;  R.  v.  Hunt,  3  B.  &  A.  566.  ^  2  St.  Ev.  303. 

*  R.   V.   Rowton,   34  L.  J.,  M.  C.  i)7  ;  L.  &  Cave,  520;  10  Cox,  25,  S.  C,  per 
Erie,  C.  J.,  &  Willes,  J. 

»  R.  V.  Rowton,   34   L.  J.,  M.  C.  57;  L.  &  Cave,  520;  10  Cox,  25,  S.  C,  per 
Cur.,  Erie,  C.  J.,  &  Willes,  J.,  diss.  «  Id.     See  post,  I  1470. 

(3194) 


CHAP  II.]  EVIDENCE  OF  GENERAL  CHARACTER.  329 

on  authority  than  on  reason, — would  probably  have  been  rejected 
long  ago  by  the  courts,  had  it  not  been  for  two  causes.  First,  the 
rule,  in  practice,  is  seldom  strictly  enforced;  and,  next,  it  has  to  a 
certain  extent  been  modified  by  the  judges.  Aware  that  •'  the  best 
character  is  generally  that  which  is  the  least  talked  about,"  '  they 
have  found  it  necessary  to  permit  witnesses  to  ^ive  negative  . 
evidence  on  the  subject,  and  to  state  that  "  they  never  heard  any- 
thing against  the  character  of  the  person  on  whose  behalf  they 
have  been  called."''  Nay,  some  of  the  judges  have  gone  so  far  as 
to  assert  that  evidence  in  this  negative  form  is  the  most  cogent 
proof  of  a  man's  good  reputation.^ 

§  351,  When  the  point  at  issue  is  whether  the  accused  has  §  326 
committed  a  particular  criminal  act,  evidence  of  his  general 
good  character  is  obviously  entitled  to  little  weight,  unless  some 
reasonable  doubts  exists  as  to  his  guilt;  and,  therefore,  in  this 
event  alone  will  the  jury  be  advised  to  act  upon  such  evidence/ 
The  inquiry,  too,  must  be  confined, — except  where  the  intention 
forms  a  material  ingredient  in  the  offence,^ — to  the  general 
character  of  the  prisoner,  and  must  not  condescend  to  particular 
facts;''  for  although  the  common  reputation,  in  which  a  person  is 
held  in  society,  may  be  undeserved,  and  the  evidence  in  support 
of  it  must,  from  its  very  nature,  be  indefinite,  some  inference, 
varying  in  degree  according  to  circumstances,  may  still  fairly  be 
drawn  from  it;  since  it  is  not  probable  that  a  man,  who  has 
uniformly  sustained  a  character  for  honesty  or  humanity,  will 
forfeit  that  character  by  the  commission  of  a  dishonest  or  a  cruel 
act.  But  the  mere  proof  of  isolated  facts  can  afford  no  such  pre- 
sumption.    "  None  are  all  evil,"  and  the  most  consummate  villain 


'  Per  Erie,  C.  J.,  34  L.  J.,  M.  C.  63  ;  L.  &  Cave,  535,  10  Cox,  33.  S.  C. 

2  Per  Cockburn,  C.  J.,  34  L.  J.,  M.  C.  64,  L.  &  Cave,  536;  10  Cox.  34, 
S.  C.  '  Id. 

*  In  R.  V.  Turner,  6  How.  St.  Tr.  613,  Hyde,  C,  J.,  observed  to  the  jury:— 
"The  witnesses  called  in  point  of  reputation  I  must  leave  to  you.  Few  men 
that  come  to  be  questioned  but  shall  have  some  come  and  say,  '  he  is  a  very 
honest  man;  I  never  knew  any  hurt  by  him;'  but  is  this  anything  against 
the  evidence  of  the  fact .?  "  ^  Ante,  ?  345. 

^  J'Anson  v.  Stuart,  1  T.  R.  754,  per  Buller,  J.  In  former  times  the  prac- 
tice was  less  strict.     See  R.  v.  Turner,  6  How.  St.  Tr.  606,  607. 

(3195) 


330  EVIDENCE  OF  GENERAL  CHARACTER.  [PART  II. 

may  be  able  to  prove,  that  on  some  occasions  he  has  acted  with 
humanity,  fairness,  or  honour.  In  all  cases,  too,  when  evidence 
is  admitted  touching  the  general  character  of  the  party,  it  ought 
manifestly  to  bear  reference  to  the  nature  of  the  charge  against 
him;'  as,  for  instance,  if  he  be  accused  of  theft,  that  he  has  been 
reputed  an  honest  man; — if  of  treason,  a  man  of  loyalty.  It 
should  also  relate  to  the  same  period  as  the  supposed  ofFence; 
for,  as  Lord  Holt  once  remarked,  "A  man  is  not  born  a  knave; 
there  must  be  time  to  make  him  so,  nor  is  he  presently  discovered 
after  he  becomes  one."  ^  Subject  to  these  observations,  evidence  of 
the  defendant's  general  good  character  is  admissible  in  all  prosecu- 
tions whether  for  felony  or  misdemeanor.^ 

§  352.  Although  the  defendant,  from  motives  of  humanity,  is  ?  327 
allowed  this  reasonable  indulgence,  the  prosecutor  cannot,  in  the 
first  instance,  have  recourse  to  the  same  loose  testimony,  for  the 
purpose  of  establishing  the  guilt  of  the  accused;*  but  if,  with  the 
view  of  raising  a  presumption  of  innocence,  witnesses  to  character 
are  called  for  the  defence,  the  counsel  for  the  Crown  may  then 
rebut  this  presumption,  by  cross-examining  the  witnesses,  either 
as  to  particular  facts,^  or,  if  they  deem  it  essential,  as  to  the 
ground  of  their  belief/  Evidence  of  general  bad  character  will 
also  in  such  case  be  admissible,'  though  it  is  seldom  resorted  to 
in  practice."  In  most  trials  for  felony,  and  in  some  for  misde- 
meanor, if  the  defendant  endeavours  to  establish  a  good  character, 
either   by  calling  witnesses   himself,  or   by    cross-examining   the 


1  Douglass  V.  Tousey,  2  Wend.  352. 

2  R.  V.  Swendsen,  14  How.  St.  Tr.  596.  =*  2  Russ.  C.  &  M,  784. 
*R.  V.  Tuberfield,  34  L.   J.,  M.  C.  20;  L.  &  Cave,  495;  10  Cox,  1,  S,   C. 

In  that  case  the  question  was  put,  not  to  prove  the  guilt  of  the  prisoner,  but  to 
show  that  the  witness,  a  policeman,  had  had  probable  cause  for  arresting  him. 
Held,  nevertheless,  that  the  answer  was  not  evidence. 

*  R.  V.  Hodgkiss,  7  C.  &  P.  298.  In  R.  v.  Wood,  5  Jur.  225,  Parke,  B., 
allowed  a  witness  to  character  to  be  asked,  in  cross-examination,  whether  he 
had  not  heard  that  the  prisoner  was  suspected  of  having  committed  a  robbery- 
some  years  before.     See,  also,  R.  v.  Turner,  6  How.  St.  Tr.  607. 

«  2  St.  Ev.  304. 

7  R.  V.  Rowton,  34  L.  J.,  M.  C.  57 ;  L.  &  Cave,  520  ;  10  Cox,  25,  S.  C.  ;  by 
all  the  judges,  overruling  R.  v.  Burt,  5  Cox,  284. 

8  2  St.  Ev.  304. 

(3196) 


CHAP.  II.  ]       EVIDENCE  OF  PREVIOUS  CONVICTION.  331  ' 

witnesses  for  the  prosecution/  the  prosecutor  is  at  liberty,  in 
answer  thereto,  to  give  proof  of  the  prisoner's  previous  conviction; 
but  the  statutes,  which  allow  this  course  to  be  adopted,  have 
strangely  omitted  all  mention  of  capital  felonies,  and  apply  only 
partially  to  misdemeanors." 

§  358.  Receivers  of  stolen  goods  have  recently  been  subjected  g  327a 
to  a  peculiar  law,  which,  though  probably  salutary,  is  somewhat 
at  variance  with  the  human  doctrine  illustrated  in  the  last 
section.  Thus,  "  The  Prevention  of  Crimes  Act,  1871,"  ^  enacts, 
in  §  19,  that  "  where  proceedings  are  taken  against  any  person  for 
having  received  goods  knowing  them  to  be  stolen,  or  for  having  in 
his  possession  stolen  property,  and  evidence  has  been  given  that 
the  stolen  property  has  been  found  in  his  possession,  then  if  such 
person  has  within  five  years  immediately  preceding  been  convicted 
of  any  offence  involving  fraud  or  dishonesty,  evidence  of  such 
previous  conviction  may  be  given  at  any  stage  of  the  proceedings, 
and  may  be  taken  into  consideration  for  the  purpose  of  proving 
that  the  person  accused  knew  the  property  which  was  j^roved  to 
be  in  his  possession  to  have  been  stolen  ;  provided  that  not  less 


1  1  R.  V.  Shrimpton,  2  Den.  319;  3  C.  &  Kir.  373,  S.  C. ;  E.  v.  Gadbury, 
8  C.  &  P.  676,  per  Parke,  B. 

■■'  6  &  7  W.  4,  c.  Ill,  after  reciting  that,  by  the  Act  of  7  &  8  G.  4,  c.  28, 
"  provision  is  made  forthe  more  exemplary  punishment  of  ofienders,  who  shall 
commit  any  felony  not  punishable  iviih  death,  after  a  previous  conviction  for 
felony,"  provides,  among  other  things,  that,  "  if,  upon  the  trial  of  any  person 
for  any  such  subseque)it  felony  as  aforesaid,  such  person  shall  give  evidence  of 
his  or  her  good  character,  it  shall  be  lawful  for  the  prosecutor,  in  answer 
thereto,  to  give  evidence  of  the  indictment  and  conviction  of  such  person  lor 
the  previous  felony,  before  such  verdict  of  guilty  shall  have  been  returned, 
and  the  jury  shall  inquire  concerning  such  previous  conviction  for  felony  at 
the  same  time  that  they  inquire  concerning  the  subsequent  felony."  The 
Larceny  Act  of  1861  contains  a  somewhat  similar  provision  with  resiDect  to 
offenders  punishable  under  that  Act;  24  &  25  V.,  c.  96,  §  116.  So  does  the 
Act  of  1861,  relating  to  offences  againt  the  coin;  24  &  25  V.,  c.  99,  ?  37.  See 
R.  V.  Martin,  1  Law  Rep.,  C.  C.  214;  11  Cox,  343,  S.  C.  So  does  '^The  Pre- 
vention of -Crimes  Act,  1871,"  with  respect  to  any  "crime  as  defined"  by  that 
Act,  that  is,  "  any  felony,  or  the  offence  of  uttering  false  or  counterfeit  coin,  or 
of  possessing  counterfeit  gold  or  .silver  coin,  or  the  offence  of  obtaining  goods 
or  money  by  false  pretences,  or  the  offence  of  conspiracy  to  defraud,  or  any 
misdemeanor  under  24  &  25  V.,  c.  96,  ?  58."     See  34  «&  35  V.,  c.  112,  II  9,  20. 

3  34  &  35  v.,  c.  112. 

(3197) 


332  EVIDENCE  OF  CHARACTER  WHEN  ADMISSIBLE.  [pART  II. 

than  SGven  days'  notice  in  writing  shall  have  been  given  to  the 
person  accused  that  proof  is  intended  to  bo  given  of  such  previous 
conviction ;  and  it  shall  not  be  necessary  for  the  purposes  of  this 
section  to  charge  in  the  indictment  the  previous  conviction  of  the 
person  so  accused."  ' 

§  354.  As  evidence  of  general  character  can,  at  best,  afford 
only  a  glimmering  light,  when  the  question  is  whether  a  party 
has  done  a  certain  act  or  not,  its  admission  for  such  a  purpose 
is  exclusively  confined  to  criminal  proceedings,  in  which  it  was 
originally  received,  some  two  centuries  ago,^  in  favorem  vitoe  ; 
and  so  strict  is  this  rule,  that  even  upon  an  information  filed 
in  the  Eevenue  side  of  the  Queen's  Bench  Division  by  the  Attorney- 
General,  with  the  view  of  recovering  penalties  from  the  defendant, 
for  keeping  false  weights,  and  for  offering  to  corrupt  an  officer,  such 
evidence  will  be  rejected,  because  proceedings  of  this  kind,  though 
brought  in  the  name  of  the  Sovereign,  are  considered  as  civil  suits.^ 
So,  in  an  action  of  ejectment  brought  by  the  heir-at-law  against  a 
devisee,  where  the  defendant  was  charged  with  having  imposed  a 
fictitious  will  on  the  testator  in  extremis,  he  was  not  permitted  to 
call  witnesses  to  prove  his  general  good  character;*  and  a  similar 
rule  was  laid  down  in  an  action  for  slander,  where  the  words  charged 
the  plaintiff  with  stealing  money  from  the  defendant,  though  the 
latter,  by  pleading  truth  as  a  justification,  had  to  put  the  character 
of  the  former  directly  in  jeopardy.^  In  an  action,  too,  for  a  libel, 
which  charged  a  surveyor  with   want  of  skill  in  doing  some  par- 


1  R.  V.  Davis,  1  Law  Rep.,  C.  C.  272;  39  L.  J.,  M.  C.  135;  and  11  Cox, 
578,  S.  C. 

^  In  1GG4  the  practice  of  calling  "witnesses  in  point  of  reputation"  was 
well  established.  See,  per  Hyde,  C.  J.,  in  R.  v.  Turner,  6  How.  St.  Tr.  613. 
In  1630,  such  evidence  was  received  by  Scroggs,  C.  J.,  Mr.  Recorder  Jefiteries 
being  the  prosecutor,  R.  v.  Harris,  7  How.  St.  Tr.  926,  929. 

=*  Att.-Gen.  v.  Bowman,  2  B.  &  P.  532,  n.  n,  per  Eyre,  C.  B.  His  Lordship 
observed,  that  "  the  true  line  of  distinction  is  this;  in  a  direct  prosecution  for 
a  crime,  "such  evidence  is  admissible;  but  where  the  prosecution  is  not  directly 
for  the  crime  but  for  the  penalty,  as  in  this  information,  it  is  not."  See  Att- 
Gen.  V.  Radloflf,  10  Ex.  R.  84,  97,  per  Martin,  B. 

*  Doe  V.  Hicks,  per  Buller,  J.,  cited  by  Gibbs,  arguendo,  in  Doe  v.  Walker,  4 
Esp.  50;  B.  N.  P.  296,  nom.  Goodright  v.  Hicks,  S.  C. 

*  Cornwall  v.  Richardson,  Ry.  &  M.  305,  per  Abbott,  C.  J 

(3198) 


§  328 


CHAP.  II.]        EVIDENCE  OF  CHARACTER  WHEN  ADMISSIBLE.  333 

tictilar  work  for  the  defendant,  the  plaintiff  was  not  allowed  to 
prove  bis  general  competency  as  a  surveyor,  though  he  offered 
this  evidence  with  the  view  of  showing  that  the  defendant,  in 
making  the  charge,  was  actuated  by  malice.'  It  seems, — notwith- 
standing a  decision  by  Lord  Kenyon  to  the  contrary,^ — that,  in  an 
action  for  malicious  prosecution,  the  defendant,  in  support  of 
probable  cause,  cannot  give  evidence  of  the  plaintiff's  notoriously 
bad  character:  ^  and  it  has  been  held  that,  in  an  action  of  trespass 
for  false  imprisonment  on  a  criminal  charge,  the  defendant  must  not 
cross-examine,  either  as  to  the  plaintiff's  bad  character,  or  as  to 
previous  charges  made  against  him.* 

§  855.  A  distinction,  however,  has  been  taken  between  cases 
where  particular  acts  of  misconduct  are  imputed  to  a  party,  and 
those  where  his  general  conduct  is  put  in  issue;  and  though 
evidence  of  character  is  rejected  in  the  former,  it  has  several 
times  been  admitted  in  the  latter  class  of  cases.^  Thus,  in  an 
action  for  a  libel,  contained  in  an  answer  to  inquiries  respecting 
the  character  of  a  governess,  where  the  language  complained  of 
stated  that  the  defendant  parted  with  the  plaintiff  "  on  account  of 
her  incompetency,  and  her  n(?t  being  ladylike  or  good  tempered," 
general  evidence  was  given  of  her  competency,  good-temper,  and 
manners,  by  witnesses  who  were  her  personal  friends  ;  ^  and  on 
the  same  principle,  where,  in  a  similar  action,  the  words  charged 
the  plaintiff  generally  with  dishonesty  and  misconduct  while  in 
service,  a  witness,  with  whom  she  had  formerly  lived,  was  allowed 
to  testify  to  her  antecedent  good  conduct.^     These  cases,  however, 


'  Brine  v.  Bazalgette,  3  Ex.  R.  692. 

^  Rodriguez  v.  Tadmire,  2  Esp.  271. 

^  Newsam  v.  Carr,  2  Stark.  R.  69,  per  Wood,  B. ;  Gregory  v.  Thomas,  2 
Bibb,  286.  In  America,  this  kind  of  evidence  has  been  also  rejected  in  actions 
of  assault  and  battery,  Givens  v.  Bradley,  3  Bibb,  192;  and  in  assumpsit,  Nash 
V.  Gilkeson,  5  Serg.  &  R.  352;  and  is  held  to  be  inadmissible  whenever  the 
general  character  is  involved  by  the  plea  only,  and  not  by  the  nature  of  the 
action,  Anderson  v.  Long,  10  Serg.  &  R.  5.3;  Potter  v.  Webb,  6  Greenl.  14, 
See  Gr.  Ev.  ?  55. 

*  Downing  v.  Butcher,  2  M.  &  Rob.  374;  Jones  v.  Stevens,  11  Price,  235. 

^  Doe  V.  Hicks,  per  Bnller,  J.,  as  cited  by  Gibbs,  arguendo,  in  4  Esp.  50. 

«  Fountain  v.  Boodle,  3  Q.  B.  5.     See  Brine  ?;.  Bazalgette,  3  Ex.  R.  692, 

^  King  V.  Waring,  5  Esp.  14,  per  Ld.  Alvanley. 

(3199) 


§  239 


334  EVIDENCE  OF  CHARACTER  TO  AFFECT  DAMAGES.        [PART  II. 

can  scarcely  be  deemed  an  exception  to  the  rule  of  exclusion;  for 
it  is  clear  that,  as  in  cumulative  ofPences,  such  as  treason  or  a 
conspiracy  to  carry  on  the  business  of  common  cheats,  many  acts 
are  given  in  evidence,  because  such  crimes  can  be  proved  in  no 
other  way,'  so,  where  the  general  behaviour  of  a  party  is  im- 
peached, it  is  only  by  general  evidence  that  the  charge  can  be 
rebutted. 


§  356.  It  has  been  above  observed,  that  in  some  cases  general  §  330 
evidence  of  character  is  admissible,  for  the  purpose  of  increas- 
ing or  diminishing  the  amount  of  damages.'^  Thus,  evidence 
impeaching  the  previous  general  character  of  the  wife  or 
daughter  in  regard  to  chastity,  is  admissible  in  a  petition  by 
the  husband  for  damages  on  the  ground  of  adultery,^  or  in  an 
action  by  the  father  for  seduction  ;  *  for  in  these  proceedings 
the  plaintiff  in  reality  seeks  compensation  for  the  pain  which 
the  defendant  has  caused  him  to  suffer,  by  disgracing  his  family, 
and  ruining  his  domestic  happiness  ;  and  it  is  manifest  that, 
such  being  the  true  nature  of  the  claim,  though  in  cases  of 
seduction  not  the  ostensible  ground  of  action,^  the  damages  should 
be  commensurate  with  the  pain,  which  will  vary  according  as 
the  character  of  the  wife  or  daughter  has  been  previously  un- 
blemished or  profligate.  In  these  cases,  therefore,  not  only  evidence 
of  general  bad  character  is  admissible  in  mitigation  of  damages,  but 
the  defendant  may  even  prove  particular  acts  of  immorality  or 
indecorum.® 

S  357.  But  evidence  of  these  acts,  as  well  as  proof  of  general  bad    |  331 


1  R.  V.  Roberts,  1  Camp.  399,  per  Ld.  Ellen  borough. 

'  Ante,  !>i  349.  =*  20  &  21  V.,  c.  85,  §  33. 

*  B.  N.  P.  27,  296;  Elsam  v.  Faucett,  2  Esp.  563,  per  Ld.  Kenyon. 

*  See  Dodd  v.  Norris,  3  Camp.  520.  per  Ld.  Ellenborough;  Andrew  v. 
Askey,  8  C.  &  P.  9,  per  Tindal,  C.  J.  See,  also,  cases  cited  in  n.  a,  to  S.  C. ; 
Grinnell  v.  Wells,  7  M.  &  Gr.  1033,  1043;  Thompson  v.  Ross,  29  L.  J.,  Fx. 
1;  5  H.  &  N.  16,  S.  C. ;  Long  i;.  Keightley,  I.  R.,  11  C.  L.  221;  Rist  v.  Faux, 
4  B.  &  S.  409,  per  Ex.  Ch.;  32  L.  J.,  Q.  B.  386,  S.  C. ;  Terry  v.  Hutchinson, 
27  L.  J.,  Q.  B.  257;  9  B.  &  S.  487,  S.  C. ;  Hedges  v.  Tagg,  7  Law  Rep.,  Ex. 
283;  41  L.  J.,  Ex.  169,  S.  C. 

Verry  v.  Watkins,  7  C.  &  P.  308,  per  Alderson,  B. ;  B.  N.  P.  27,  296. 

(3200; 


CHAP.  II.]  EVIDENCE  OF  CHARACTER  TO  AFFECT  DAMAGES.  335 

character,  must  be  confined  to  what  occurred  previously  to  the  defen- 
dant's misconduct,  because  this  very  misconduct  may,  by  weakening 
the  principles  of  the  woman,  have  directly  caused  any  subsequent 
immorality,  and  may  itself  have  directly  occasioned  her  general 
want  of  reputation.'  Whether  in  an  action  of  seduction,  where  the 
plaintiff's  daughter  is  called  as  a  witness,  the  defendant  can  prove 
specific  acts  of  immorality,  without  first  laying  a  foundation  for  such 
evidence  in  the  cross-examination  of  the  woman,  is  not  perfectly 
clear  ;  though,  on  principle,  such  a  course  seems  open  to  no 
objection,  provided  the  evidence  be  tendered  with  the  view,  not  of 
impeaching  the  veracity  of  the  party  seduced,  but  of  showing  that, 
as  her  previous  conduct  had  been  disgraceful,  the  father's  feelings 
could  not  have  been  wounded  by  the  misconduct  of  the  defendant.^ 
However,  if  the  daughter,  in  her  examination  in  chief,  states  that 
the  defendant  had  seduced  her,  and  that  she  has  borne  a  child  in 
consequence,  and  the  defence  is  that  she  has  declared  another 
person  to  be  the  father,  it  is  clear  that  witnesses  cannot  be  called  to 
prove  her  declarations,  unless  she  be  first  cross-examined  as  to  the 
fact  of  her  having  made  them  ;  because,  though  language  of  this 
kind,  if  light  uttered,  would  tend  to  degrade  her  character,  yet  if 
used  in  earnest,  it  would  directly  contradict  the  testimony  she  had 
given,  and  would  be  evidence,  not  in  mitigation  of  damages,  but  in 
bar  of  the  action.^ 


§  358.  On  a  petition  claiming  damages  from  an  alleged  adul-  |  332 
terer,*  the  co-respondent  may  also  prove  in  mitigation  of  damages, 
that  the  petitioner  has  been  guilty  of  notorious  infidelity  ;  has 
turned  his  wife  out  of  doors  ;  has  refused  to  maintain  her ;  or  has 
otherwise  been  guilty  of  dissolute  conduct  f  for,  in  such  cases,  a 
man  can  scarcely  complain  of  the  loss  of  that  society,  upon  which 
he  has  himself  placed  so  little  value.  It  seems,  also,  that  upon  a 
like  principle,  evidence  may  be  given  in  an  action  for  seduction, 
that  the  plaintiff  is  a  man  of  profligate  habits.  In  actions  for  breach 


1  Elsam  V.  Faucett,  2  Esp.  562;  B.  N.  P.  27. 

^  Carpenter  v.  Wall,  11  A.  &  E.  803  ;  3  P.  &  D.  457,  S.  C. 

'  id. ;  Andrews  v.  Askey,  8  C.  &  P.  9,  per  Tindal,  C.  J. 

*  See  20  &  21  V.,  c.  85,  ?  33. 

*  B.  N.  P.  27 ;     Bromley  v.  Wallace,  4  Esp.  237. 

(3201) 


336  EVIDENCE  OF  CHARACTER  TO  AFFECT  DAMAGES.         [PART  II. 

of  promise  of  marriage  a  similar  rule  prevails,  the  defendant  being 
entitled  to  prove  in  mitigation  of  damages,  tbat  the  plaintiflF  is  a 
person,  either  of  bad  character,'  or  of  course  and  brutal  manners,^ 
though  if  the  acts  of  misconduct  relied  upon  were  committed  after 
the  promise,  or  even  before  that  event  ivithout  tJie  knoicledge  of  the 
drfendant,^  and  were  sufficiently  glaring  to  constitute  a  bar  to  the 
action,*  they  can  only  be  proved  under  a  special  defence.^ 


§  359.  Whether  in  an  action  for  defamation,  evidence  impeach-  ?  333 
ing  the  plaintiff's  previous  general  character,  and  showing  that,  at 
the  time  of  the  publication,  he  laboured  under  a  general  suspicion 
of  having  been  guilty  of  the  charge  imputed  to  him  by  the 
defendant,  is  admissible  as  affecting  the  question  of  damages,  is 
a  point  which  has  been  much  controverted.  On  the  one  hand  it 
is  uro-ed,  that  the  admission  of  such  evidence  would  be  cruelly 
unjust,  as  it  would  throw  upon  the  plaintiff,  while  seeking  redress 
in  a  court  of  justice  for  a  specific  injury,  the  difficulty  of  shoAving 
an  uniform  propriety  of  conduct  during  his  whole  life,  and  would 
give  the  defendant  an  opportunity,  under  pretence  of  mitigating 
the  damages,  of  continuing  and  aggravating  the  original  calumny  ; 
and  that,  too,  under  circumstances,  when,  from  the  absence  of  any 
plea  of  justification,  his  opponent  was  utterly  unprepared  to  dis- 
prove the  aspersions.  It  is  further  contended,  that  if  such 
evidence  were  admissible,  any  man  might  fall  a  victim  to  a  com- 
bination made  to  ruin  his  good  name,  even  by  means  of  the  very 
action  which  he  should  bring  in  order  to  free  himself  from  the 
effects  of  malicious  slander ;  that  timid,  though  well-conducted 
men,  would  consequently  not  dare  to  vindicate  their  characters  in 
courts  of  justice,  and  thus  libellers  would  enjoy  a  most  dangerous 
impunity. 

§  360.  To  this  it  is  replied  with  much  force,  that,  though  the    §  333 

1  Foulkes  V.  Sellway,    3  Esp.  236,  Ld.    Kenyon.       See,    also,    Johnson  v. 
Caulkins,  1  Johns.  C.  116  ;    Boynton  v.  Kellogg,  3  Mass.  189. 

^  Leeds  v.  Cook,  4  Esp.  258,  per  Ld.  Ellenborongh. 

=*  Irving  V.Greenwood,  1  C.  &  P.  350,  per  Abbott,  C.  J. 

♦  Leeds  v.  Cook,  4  Esp.  256  ;    Baddeley  v.  Mortlock,  Holt,  N.  P.  R.  151. 

^  Ante,   ?   301.     See  Young  v.  Murphy,   3  Bing.  N.  C.  54 ;  and  Pujolas  v. 
Holland,  Tr.  Cir.  R.  19. 

(3202) 


CHAP.   II.]     EVIDENCE  OF  CHARACTER  TO  AFFECT  DAMAGES.  337 

arguments  on  the  other  side  would  be  entitled  to  gjreat  weight,  if 
the  question  respected  the  right  of  proving  particular  acts  of 
misconduct,  they  do  not  apply  where  evidence  is  offered  of  merely 
general  repntatio)t ;  that  evei'y  man  who  demands  compensation 
for  the  ruin  of  his  good  character,  ought  to  be  prepared  to  rebut 
any  evidence  of  his  general  bad  character;  that  the  danger  of 
admitting  testimony  of  this  kind  is  only  imaginary,  since  the 
witnesses,  on  cross-examination,  might  be  compelled  to  state 
the  grounds  of  their  belief;  that,  as  any  failure  in  the  evidence 
would  probably  much  increase  the  damages,  witnesses  would 
scarcely  be  called,  except  in  support  of  a  decisive  case;  that  the 
law  will  not  presume  the  existence  of  criminal  conspiracies  to 
ruin  reputations,  and  cannot  be  moulded  to  suit  the  convenience 
of  irrational  timidity;  that  to  estimate  the  extent  of  the  injury 
which,  a  plaintiff  has  sustained,  and,  consequently,  the  amount  of 
damages  to  which  he  is  entitled,  the  jury  must  first  ascertain  what 
was  the  real  value  of  his  character  at  the  time  when  it  was  attacked 
by  the  defendant;  and,  that  they  can  best,  if  not  only,  arrive  at  a 
safe  conclusion  on  this  point,  by  inquiring  what  opinion  was  pre- 
viously entertained  respecting  him,  by  those  with  whom  he  was 
personally  acquainted.' 

§  360a.   Such  being  the  arguments  on  either  either  side  of  this 

^  See,  in  support  of  the  admissibility  of  the  evidence,  Itichards  v.  Richards, 

2  M.  &  Rob.   557;  v.   Moor,  1  M.  &  Sel.  284;  Ld.  Leicester  v.  Walter, 

2  Camp.  251;  Bell  v.  Parke,  11  Ir.  Law  R.,  N.  S.  413,  per  Pigot,  C.  B.; 
Williams  v.  Callender,  Holt,  N.  P.  R.  307;  Earner  r.  Merle,  per  Ld.  Ellen- 
borough,  cited  2  Camp.  253;  Knobell  r.  Fuller,  Pea.  Add.  Cas.  1.39.  per 
Eyre,  C.  J. ;  Newsman  r.  Carr,  2  Stark.  R.  70,  per  Wood,  B. ;  Ellershaw  v. 
Robinson,  per  Holroyd,  J. ;  Moore  r.  Oastler,  in  1836,  per  Ld.  Denman,  after 
consulting  Parke,  B. ;  Mawby  v.  Barber,  in  1826,  per  Ld.  Tenterden;  and 
Hardy  v.  Alexander,  in  1837,  per  Coltman,  J.  These  last  four  cases  are  cited 
in  2  St.  Ev.  641,  642,  n.  e.  Kirkman  v.  Oxley,  per  Heath,  J.,  cited  2  St.  Ev. 
306,  n.  k.  See  contra— Scott  r.  Sampson,  L.  R.,  8  Q.  B.  D.  491,  per  Mathew 
&  Cave,  .LT.;  51  L.  J.,  Q.  B.  380.  S.  C;  Jones  r.  Stevens,  11  Price,  325; 
Waithmanr.  Weaver,  D.  &  R.,  N.  P.  C.  10;  11  Price,  2.57,  n.  S.  C;  Cornwall  v. 
Richardson,  Ry.  &  M.  305,  per  Abbott,  C.  J. ;  Snowdon  v.  Smith,  per  Chambre, 
J.,  cited  1  M.  &  Sel.  286.  In  Scotland  the  evidence  is  admissible.  Dickson, 
Ev.  ^  24,  and  cases  there  cited  in  n.  (d).  For  the  American  authorities,  see 
Root  r.  King,  7  Cowen,  613;  Bailey  v.  Hyde,  3  Conn.  463;  Bennett  v.  Hyde,  6 
Conn.  24;  Douglass  v.  Tousey,  2  Wend.  3.52;  Inman  v.  Fo.ster,  8  Wend.  602; 
Walcott  {'.  Hall,  6  Mass.  514;  Ro.ss  v.  Lapham,  14  Mass.  275;  Foot  v.  Tracy, 
1  Johns.  45. 

22  LAW  OF  EVID.— V.  I.  (3203) 


338  EVIDENCE  OF  CHARACTER  TO  AFFECT  DAMAGES.      [pART  II. 

vexed  question,  it  remains  only  to  observe  that, — afifmniiny  the 
evidence  to  bo  admissible, — the  defendant,  who  has  not  pleaded  truth 
as  a  justitication,  is  now  precluded,  by  a  recent  Kule  of  Court,' 
from  attempting  to  mitigate  damages  by  giving  evidence  reflecting 
on  the  plaintiff's  character,  unless  he  has  first  taken  one  of  two 
courses;  that  is,  he  must  either  have  obtained  the  leave  of  a  judge, 
or  he  miist,  at  least  seven  days  before  his  trial,  have  furnished 
"  particulars  to  the  plaintiff  of  the  matters  as  to  which  he  intends 
to  give  evidence." 

§  361.  It  seems,  also,  that  here,  as  in  other  cases  where  wit-  ^  :'>:!4 
nesses  to  character  are  admitted,  evidence  must  be  confined  to  the 
particular  trait  which  is  attacked  in  the  alleged  libel,  and,  as  to 
this,  it  can  only  furnish  proof  of  general  reputation,  and  must  by  no 
means  condescend  to  particular  oc^s  of  bad  conduct.'  And  it  is 
quite  clear,  that  any  evidence  of  rumors,  which  are  calculated  to 
compromise  the  plaintiff's  character,  must  be  strictly  confined  to 
such  as  were  prevalent  before  the  publication  .of  the  slander  of  the 
defendant;  for  if  this  were  not  so,  one  man  might  slander  another, 
and  then  call  his  neighbours  to  say  that  they  had  heard  of  the  im- 
putations which  he  had  himself  originated.^ 

§  362.  In  aggravation  of  damages  the  plaintiff  cannot  give  ^  335 
evidence  of  general  good  character,  unless  counter-proof  has  been  , 
first  offered  by  the  defendant:  for,  until  the  contrary  appear, 
the  presumption  of  law  is  already  in  his  favour.  Therefore,  in 
an  action  of  slander  for  imputing  theft,  the  plaintiff  will  not  be 
allowed  to  prove  his  character  for  honesty,  even  though  the 
defendant  has  placed  on  the  record  pleas  of  justification.^  This 
rule  has,  in  some  cases,  been  carried  to  a  cnael  extent.  Thus,  in 
an  action  for  seduction,  where  evidence  was  produced  for  the 
defence,  to  prove  that  the  girl  had  previously  had  a  child  by 
another  man.  Lord  Ellenborough  woilld  not  allow  a  question  to 
be  asked  respecting  her  general  good  character  for  chastity,  but 


1  Rules  of  Sup.  Ct.,  1883,  Ord.  XXXVI.,  R.  37,  cited  ante,  |  344,  ad.  fin. 
■^  See  cases  cited  in  la.st  note  but  one,  and  further,  Andrews  v.  Vanduzer,  11 
Johns.  38;  Sawyer  v.  Eifert,  2  Nott  &  M'C.  511. 

■'  Thompson  r.  Nye,  16  Q.  B.  175;  Bell  v.  Parke,  11  Ir.  Law  K..  N.  S.  413. 
*  Cornwall  v.  Richardson.  Ry.  &  M.  305,  per  Abbott,  C.  J. 

(3204) 


CHAP  II.]       EVIDENCE    OF    CHARACTER    WHEN    ADJNIISSIBLE.  339 

restricted  the  plaintiff  to  the  proof  that  the  specitic  charge  made 
by  the  defendant  was  false;'  and  the  same  learned  judge  on 
another  occasion,  where  the  daughter  was  cross-examined  at 
length,  with  a  view  of  showing  that  she  had  been  guilty  of  gross  ' 
levity  and  indelicacy,  rejected  similar  evidence,  observing  that  the 
witness,  on  her  re- examination,  had  had  ample  opportunity  of 
explaining  her  condiict.'  In  another  case  for  criminal  conversation, 
in  which  the  defendant  had  endeavored,  by  cross-examining  the 
plaintiff's  witnesses  to  impeach  his  character,  but  had  failed  in 
the  attempt.  Lord  Kenyon  refused  to  permit  the  plaintiff  to  call 
witnesses  to  his  general  good  conduct.'  It  is  true  that  in  these 
cases  the  facts  insinuated  had,  or  might  have,  been  denied,  and 
that,  consequently,  the  characters  attacked  remained  in  strictness 
unimpeached;  still,  the  very  circumstance  of  the  questions  being 
asked  was  calculated  to  excite  a  suspicion  in  the  minds  of  the  jury, 
which,  in  common  justice,  the  plaintiff  should  have  had  an  oppor- 
tunity of  entirely  removing.^  It  is  satisfactory  to  find  that  a 
contrary  rale  has  prevailed  in  two  later  cases,'  one  of  which  has 
been  recognised  in  Ireland." 

§  363.  The  law  which  regulates  the  admission  of  general  evi-  |  336 
dence  of  character  for  the  purpose  of  imjyeacliing  the  veracity  of 
a  ivitness  will  be  discussed  hereafter;'  but  it  may  be  here  con- 
venient to  point  out  how  far  such  evidence  will  be  receivable, 
where  its  object  is,  not  so  much  to  shake  the  credit  of  the  witness, 
as  to  show  directly  that  the  act  in  question  has  not  been  com- 
mitted. Thus,  on  indictments  for  rape,  or  an  attempt  to  commit 
that  crime,  while  evidence  of  general  bad  character  is  admissible 
to  show  that  the  prosecutrix,  like  any  other  witness,  ought  not  to 


'  Bamliekl  r.  Massey,  1  Camp.  460,  ^  Dodd  r.  Norris,  ?>  Camp.  519. 

'■'  King  V.  Francis,  3  Esp.  IKi. 

M  C.  &  P.  100,  n.  a  ;  2  St.  Ev.  306,  307. 

'"  Bate  r.  Hill,  1  C.  &  P.  100,  per  Park,  .1. ;  Murgatroyd  v.  Murgatroyd, 
perBayley,  J.,  cited  2  St.  Ev.  307,  n.  o.  See,  also,  K.  v.  Clarke,  2  Stark. 
K.  241. 

''  Brown  r.  Goodwin,  Ir.  Cir.  Rep.  61,  per  Torrens,  .1.  Trespass  for  seduc 
tion.  Tlie  daughter  was  asked  (juestions  tending  to  impeach  her  reputation, 
whereupon  the  plaintift'  was  allowed  to  call  witnesses  to  speak  to  her  general 
good  character.  '   Post,  ^  1470 — 1473. 

(3205) 


340  EVIDENCE    OF    UHARACTEK    OF    PROSECUTRIX.         [PAKT   II. 

be  believed  upon  her  oath,  proof  that  she  is  a  reputed  prostitute 
would  go  far  towards  raising  an  inference  that  she  yielded  willingly 
to  the  prisoner's  embraces.  General  evidence,  therefore,  of  this  kind 
will  be  received,  though  the  woman  be  not  called  as  a  witness, 
and  though,  if  called,  she  be  not  asked,  on  cross-examination, 
any  questions  tending  to  impeach  her  character  for  chastity;' 
but  it  seems  that  the  counsel  for  the  defence  cannot  go  further, 
and  prove  specific  immoral  acts  with  the  prisoner,  unless  he  has 
tirst  given  the  prosecutrix  an  opportunity  of  denying  or  explaining 
tnem.''  It  further  appears  to  be  the  law,  that  although  the  prose- 
cutrix mav  be  cross-examined  as  to  particular  acts  of  immorality 
with  other  men,  she  may  decline  to  answer  such  questions,  and  if 
she  answers  them  in  the  negative,  witnesses  cannot  be  called  to 
contradict  her.' 


'  K.  r.  Clarke,  *  Stark.  K.  -^41,  per  Holroyd,  J.;  K.  c.  Clure,  Ir.  Cir.  K.  :27.'), 
per  Crampton,  .T. 

^  R.  I.  Cockcroft,  11  Cox,  410.  See  K.  r.  Martin,  (i  C.  &  P.  562  ;  R.  o. 
Kobins,  2  M.  &  Rob.  512  ;  R.  r.  Aspinwall,  per  Hullock,  B.,  cited  3  St.  Ev.  952, 
n.  c  In  R.  r.  Hodgson,  R.  &  R.  211,  it  was  held  that  evidence  of  the  prosecu- 
trix having  had  connexion  with  other  men  was  inadmissible.  On  one  occasion 
the  prisoner's  counsel  was  allowed  to  ask  the  prosecutrix,  with  the  view  of  con- 
tmdkling  her,  whether  she  had  not,  on  a  day  since  the  alleged  rape,  been 
walking  in  a  certain  street  with  a  common  prostitute,  looking  out  for  men. 
P.  i\  Barker,  3  C.  &  P.  589,  per  Park,  ,T.,  after  consulting  Parke,  .T. ;  see  also 
Verry  r.  Watkins,  7  C  &  P.  308  ;  Andrews  i\  Askey,  8  C.  &  P.  7  ;  and  R.  r. 
Dean,  6  Cox,  23. 

'^  R.  c.  Cockcroft,  11  Cox,  410,  per  Willes,  .1.,  &  Martin,  B. ;  R.  c.  Holmes 
and  Furness,  41  L.  .!..  M  C.  12  ;  12  Cox,  137  ;  1  Law  Rep.,  C.  C.  334,  S.  C, 
per  five  judges  in  Ct.  of  Cr.  Ap.,  overruling  R.  c.  Robins,  2  M.  &  Rob.  512. 


(3206) 


A  TREATISE 


LAW  OF  EVIDENCE 


AS  ADMINISTERED  IN  ENGLAND  AND  IRELAND; 


ILLUSTRATIONS  FROM  AMERICAN  AND  OTHER   FOREIGN 

LAWS. 


From  the  Eighth  English  Edition. 

BY 

His  Honour  JUDGE  PITT  TAYLOR. 


YOL.  I. 
PART  II. 


Longum  iter  est  per  prsecepta. 

Breve  et  efflcax  per  exempla  — Seneca. 


PHILADELPHIA: 

THE  BLACKSTONE  PUBLISHING  COMPANY. 

1887 


Entered  according  to  the  Acts  of  Congress  in  the  year  1887,  by  the  Black- 
stone  Publishing  Company    In  the  office  of  the  Librarian  of 
Congress  at  Washington,  D.  C. 


(3208] 


CHAP.  III.]       RULES  RESPECTING  THE  BURTHEN  OF  PROOF.  341 


CHAPTER  Iir 

BURTHEN    OF    PROOF. 

§  36'J..'  A  THIRD  RULE,  wbicb  governs  the  production  of  evidence,  |  337 
is,  that,  the  burthen  of  jjroof  lies  on  the  ijarty  ivlio  substantially 
asserts  the  affirmative  of  the  issue.  This  rule  of  convenience, — which 
in  the  Roman  law  is  thus  expressed,  Ei  incumbit  probatio,  qui  dicif, 
nan  qui  negat,'  has  been  adopted  in  practice,  not  because  it  is  im- 
possible to  prove  a  negative,  but  because  the  negative  does  not  admit 
of  the  direct  and  simple  proof  of  which  the  affirmative  is  capable;  ^ 
and,  moreover,  it  is  but  reasonable  and  just  that  the  suitor  who 
relies  upon  the  existence  of  a  fact,  should  be  called  upon  to  prove 
his  own  case.  In  the  application  of  this  rale,  regard  must  be  had 
to  the  substance  and  effect  of  the  issue,  and  not  to  its  grammatical 
form;  for  in  many  cases  the  party,  by  making  a  slight  alteration 
in  the  drawing  of  his  pleadings,  may  give  the  issue  a  negative  or 
affirmative  form  at  his  pleasure.* 

§  365.  The  best  tests  that  can  be  devised  for  ascertaining  on  ^  033 
whom  the  burthen  of  proof  lies,  are,  first  to  consider  which  party 
would  succeed  if  no  evidence  were  given  on  either  side  ; ''  and, 
secondly,  to  examine  what  would  be  the  effect  of  striking  out  of  the 
record  the  allegation  to  be  proved,  bearing  in  mind  that  the  onus 
must  lie  on  whichever  party  would  fail,  if  either  of  these  steps  were 
pursued.®     For  instance,  if,    in   an  action  brought  by  a  landlord 


^  Gr.  Ev.  I  74  in  yyart. 

2  Dig.  Lib.  2-2,  tit.  3,  1,  2;  Masc.  de  Prob.  Concl.  70,  tot.;  Concl.  112>!,  n.  10. 
See  Tait,  Ev.  1. 

^  Dranquet  v.  Prudhomme,  3  Lonis.  E.  83,  86. 

*  Soward  v.  Leggatt,  7  C.  &  P.  615,  per  Ld.  Abinger. 

*  Amos  r.  Hughes,  1  M.  &  Rob.  464,  per  Alderson,  B. ;  Belcher  v.  M'Intosh, 
8  C.  &  P.  721,  per  Id. ;  Doe  v.  RowLands,  9  C.  &  P.  73."),  per  Coleridge,  J. ; 
Osborn  v.  Thompson,  2  M.  &  Rob.  256,  per  Erskine,  J.;  Ridgeway  v.  Ewbank, 
2  id.  218,  per  Alderson,  B. ;  Geaeh  v.  Ingall,  14  M.  &  W.  97,  per  id. 

"  Mills  V.  Barber,  1  M.  &  W.  427,  per  Alderson,  B. 

(3209) 


342  EXAMPLES  RESPECTING  TIIK  nRTHEN  OF  PROOF.       [pART  II. 

against  Lis  tenant,  tbo  breach  of  contract  assigned  be  that  the 
premises  were  not  kept  in  repair,  and  this  allegation  be  traversed  by 
the  statement  of  defence,  the  plaintiff  must  prove  his  negative  aver- 
ment; '  for  though  according  to  the  grammatical  construction  of  the 
issue,  the  affirmative  lies  on  the  defendant,  yet  the  substantial  merits 
of  the  case  mu&t  be  proved  by  the  plaintifP;  and  if  no  evidence  were 
given,  or  if  the  allegation  on  which  issue  was  joined  were  struck 
from  the  record,  the  defendant  would  clearly  be  entitled  to  a 
verdict.  So,  if  a  statement  of  claim  on  a  life  policy, — after 
averring  that  the  insurance  was  effected  on  an  assertion  made  by 
the  plaintiff,  that  the  insured  was  not  subject  to  habits  or  to  attacks 
of  illness  tending  to  shorten  life,  but  was  in  good  health, — should 
allege  that  this  assertion  was  true,  and  the  defendant  were  to  plead 
that  it  was  false  in  these  respects,  that  the  insured  was  subject  to 
habits  and  to  attacks  tending  to  shorten  life,  that  is,  to  habits  of 
intemperance  and  to  attacks  of  erysipelas,  and  was  ill  at  the  time 
when  the  assertion  was  made,  the  burthen  of  proof  would  lie  upon 
the  plaintiff,  because,  to  entitle  him  to  a  verdict,  some  evidence  must 
be  given  to  show  that,  at  the  time  when  the  policy  was  effected,  the 
life  was  insurable.^ 

§  366.  Again,  if  to  an  action  for  not   executing  a  contract  in  a    §  338 
workmanlike  manner,  the  defendant  plead  that  the  work  was  pro- 
perly done,^  or  if  a   statement  .of  claim   allege  that   a  horse    sold 
under  warranty  was  unsound,    and   this    fact   be  traversed  by   the 
statement   of   defence,^   the  onus,   in   either  case,    will   lie   on  the 


1  So  ward  r.  Leggatt,  7  C.  &  P.  61.3;  Doe  v.  Rowlands,  9  C.  &  T.  734,  per 
Coleridge,  J.;  Belcher  v.  M'iDtosh,  8  C.  &  P.  720,  per  Alderson,  B. 

2  Iliickman  r.  Firnie,  3  M.  &  W.  .50.3,  510;  Ashby  v.  Bates,  15  M.  &  W. 
589;  4  Dowl.  &  L.  3.3,  S.  C;  Geach  r.  Ingall,  14  M.  &  W.  95;  Eawlins  v. 
Desborough,  2  M.  &  Eob.  70,  per  Ld.  Denman;  8  C.  &  P.  321,  S.  C;  Craig  v. 
Fenn,  C.  &  Marsh.  43,  per  id.  In  Pole  r.  Rogers,  2  M.  &  Rob.  287,  Tindal, 
C.  J.,  held,  that  xmder  similar  pleadings,  the  defendant  should  begin;  but  this 
case,  being  distinctly  oyjposed  to  the  authorities  stated  above,  cannot  be  sup- 
ported. ^  Amos  V.  Hughes,  1  M.  &  Eob.  464. 

*  Osborn  v.  Th^mpson,  9  C.  &  P.  337,  per  Erskine,  J.;  2  M.  &  Rob.  254, 
S.  C;  Cox  V.  Walter,  cited  9  C.  &  P.  .339,  per  Ld.  Denman;  S.  P.  ruled  per 
Tindal,  C.  J.,  as  cited  id.  .338.  In  Fisher  v.  Joyce,  cited  id.  338,  Coleridge,  J., 
allowed  the  defendant  to  begin,  but  in  Doe  v.  Rowlands,  id.  735,  he  confessed 
that  this  decision  was  wrong. 

(3210) 


CHAP.  III.]   EFFECT  OF  DISPUTABLE  PRESUMPTIONS  OF  LAW.  343 

plaintiff;  and  the  same  rule  will  prevail  in  an  action  brought  against 
a  solicitor  for  not  using  due  diligence,'  or  against  a  merchant  for 
not  loading  a  sufficient  cargo  on  board  a  ship,  pursuant  to  a 
charter-party,'  or  against  an  architect  for  not  building  houses 
according  to  a  specification,^  and,  indeed,  in  every  case  in  which 
the  plaintiff  grounds  his  right  of  action  upon  a  negative  allegation, 
and  where,  of  course,  the  establishment  of  this  negative  is  an 
essential  element  in  support  of  his  claim.*  So,  if  a  damage  suit 
be  instituted  in  the  Admiralty  Division  of  the  High  Court,  and 
the  defendant,  making  no  charge  of  negligence  against  the  plaintifP, 
denies  his  averments,  and  pleads  inevitable  accident,  the  plaintifif 
on  the  trial  must  begin. ^ 

§  367.  On  this  general  rule,  that  the  burthen  of  proof  lies  on  the  I  339 
party  holding  the  substantial  affirmative,  some  exceptions  have  been 
engrafted,  which  should  here  be  noticed.  First,  if  a  disputable  pre- 
sumptioyi  of  law^  is  in  favour  of  an  affirmative  allegation,  the  party 
who  supports  the  negative  must  call  witnesses  to  rebut  this  pre- 
sumption. For  instance,  where  a  shipper  was  charged,  in  an  action 
on  the  case,  with  having  shipped  goods  dangerously  combustible  on 
board  the  plaintiff's  ship,  without  giving  notice  of  their  nature  to  any 
officer  on  board,  whereby  the  ship  was  burnt,  it  was  held  that,  as  the 
omission  to  give  notice  would  have  been  a  criminal  neglect  of  duty 
on  the  part  of  the  defendant,  the  law  presumed  that  notice  had  been 
given,  and  threw  upon  the  plaintiff  the  burthen  of  proving  the  nega- 
tive.' So,  where  a  landlord  brought  an  action  of  ejectment  against 
his  tenant,  on  an  alleged  forfeiture  by  breach  of  a  covenant  to  insure 
in  some  office  in  or  near  London,  it  was  held  that  the  omission  to 


1  Shilcock  r.  Passman,  7  C.  &  P.  291,  per  Aldersou,  B. 

*  Ridgway  v.  Ewbauk,  2  M.  &  Rob.  217,  per  Aklerson,  B. 
3  Smith  V.  Davies,  7  C.  &  P.  307,  per  Aklerson,  B. 

♦  Doe  V.  .Johnson,  7  M.  &  Gr.  1047,  1063,  per  Tindal,  C.  J. 

°  The  Benmore,  4  Law  Rep.,  Adm.  &  Ecc.  132;  43  L.  J.,  Adm.  5,  S.  C; 
The  Otter,  4  Law  Rep.,  Adm.  &  Ecc.  203. 

^  It  is  only  with  reference  to  disputable  presumptions  of  law  that  this  rnle 
applies,  for  if  the  presumption  be  conclusive,  no  evidence  can  be  given  to  rebut 
it;  if  it  be  merely  one  of  fact,  it  can  only  be  made  through  the  intervention  of 
a  jury.     See  ante,  U  "1,  109,  214—216. 

^  Williams  v.  E.  India  Co.,  3  East,  192. 

(3211) 


344  EFFECT  OF  PRESUMPTIONS  IN  SHIFTING  ONUS.  [  PART  II. 

insure  was  a  fact  which  the  plaintiflP  had  to  prove,  because  the  law,  in 
favour  of  the  party  in  possession,  presumed  that  he  had  satisfied  the 
terms  of  the  covenant; '  and  had  the  landlord  wished  to  have  been 
relieved  from  the  necessity  of  establishing  this  negative  proof,  he 
micjht  easily  have  inserted  a  clause  to  that  effect  in  the  lease.^  If,  to 
an  action  on  a  policy  of  insurance  effected  on  a  ship,  the  underwriter 
plead  that  certain  material  facts,  known  to  the  assured,  had  been 
concealed  from  him,  the  burthen  of  proving  the  non-communication 
of  these  facts  will,  on  a  reply  traversing  the  whole  statement 
of  defence,  fall  on  the  defendant;  for,  although  the  allegation  con- 
tained in  his  statement  may  be  negative  in  its  terms,  still,  as  it  was 
the  duty  of  the  assured  to  make  the  communication, — either  upon 
the  principle  that  every  policy  is  based  on  the  supposed  existence  of 
a  certain  state  of  facts,  or  on  the  ground  that  insurance  is  a  contract 
uberrimse  fidei, — some  evidence  should  be  given  by  the  underwriter 
to  rebut  the  presumption  that  the  assured  had  discharged  his  duty. 
The  amount  of  the  proof  required  will,  indeed,  vary  according  to  the 
circumstances  of  the  case,  and  very  slender  evidence  will  often  be 
sufficient;  for,  suppose  a  ship  was  known  by  the  assured  to  have 
been  burnt  at  the  time  when  the  assurance  was  effected,  proof  of 
this  fact  would  in  itself  be  reasonable  evidence  to  show  that  it  had 
not  been  communicated,  because  no  underwriter  in  his  senses, 
had  he  been  aware  of  such  a  circumstance,  would  have  executed 
the  policy.^ 

§  368.  Again,  if  a  party  be  sued  on  a  bill  of  exchange  alone, 
without  any  substantive  claim  being  made  in  respect  of  the  con- 
sideration, the  plaintiff  need  not  allege  in  his  statement  or  prove  at 
the  trial  that  the  bill  was  given  for  a  good  consideration,  as  the  law 
will  presume  that  fact  in  the  absence  of  evidence  to  the  contrary.* 


1  See  Toleman  v.  Portbury,  39  L.  J.,  Q.  R.  136,  per  Ex.  Ch. 

=*  Doe  V.  Whitehead,  8  A.  &  E.  571.  The  court  there  held  that  the  defen- 
dant's refusal  to  produce  the  policy  or  any  receipt  for  premium,  both  before 
the  action  was  commenced,  and  also  at  the  trial,  was  not  sufficient  proof  of  an 
omission  to  insure,  though  due  notice  to  produce  had  been  served. 

»  Elkin  V.  Janson,  13  M.  &  W.  655,  663,  665,  per  Parke  and  Alderson,  Bs. 

*  45  &  46  v.,  c.  61,  ^  30.  Eules  of  Sup.  Ct.,  1883,  Ord.  XIX.,  R.  25,  is  as 
follows: — "Neither  party  need  in  any  pleading  allege  any  matter  of  fact 
■which  the  Icno  inesumcs  in  his  favour,  or  as  to  which  the  burthen  of  proof  lies 

(3212) 


CHAP.  III.]       EFFECT  OF  PRESUMPTIONS  IN  SHIFTING  ONUS.  345 

So, — to  put  a  somewhat  more  complex  case, —  where  to  an  action  g  340 
brought  by  an  indorsee  against  the  acceptor  of  a  bill  of  exchange,  the 
defendant  pleaded  that  the  bill  was  accepted  by  him  for  the  accom- 
modation of  the  drawer,  and  was  indorsed  to  the  plaintiff  without 
value,  and  the  plaintiff  replied  that  it  was  indorsed  to  him  for  a 
valuable  consideration,  the  burthen  of  proving  this  issue  was  held  to 
lie  on  the  defendant,  because  the  mere  possession  of  the  bill  raised  a 
prima  facie  presumption  of  due  consideration  having  been  given  for 
it,'  and  perhaps  also, — independent  of  this  presumption,— because 
the  defendant  was  bound  to  prove  all  those  facts,  whether  affirmative 
or  negative,  which  were  necessary  to  establish  his  defence  to  the 
action.^  So,  where  the  defendant  pleaded  that  he  had  accepted  the 
bill  for  his  own  accommodation,  and  that  the  drawer,  instead  of 
getting  it  discounted  for  the  use  of  the  defendant,  had  indorsed  it  to 
a  stranger,  who  had  fraudulently  indorsed  it  to  the  plaintiff,  after  it 
became  due,  or  without  consideration,  and  the  plaintiff  traversed  this 
last  allegation,  the  burthen  of  proving  that  the  bill  was  overdue  at 
the  time  of  indorsement,  or  that  no  value  was  given  for  it  by  the 
holder,  was  held  to  have  devolved  on  the  defendant,  because  the 
plea  did  not  contain  such  an  allegation  of  fraud  as  would  counteract 
the  presumption  arising  from  the  possession  of  the  instrument.^ 

§  3G9.  Where,  however,  the  defendant's  plea,  after  disclosing  some    g  341 
original  fraud  or  illegality  in  the  transaction, — as,  for  instance,  after 
stating  that  the  bill  had  been  obtained  by  fraud  or  duress,  or  had 
been  given  for  gambling  purposes,*  or  had  been  lost  or  stolen, — • 
averred  that  the  plaintiff  held  it  without  value,  and  this  last  fact 


upon  the  other  side,  unless  the  same  has  first  been  specifically  denied.  E.g. — 
Consideration  for  a  bill  of  exchange,  where  the  plaintiff  sues  only  on  the  bill, 
and  not  for  the  consideration  as  a  substantive  ground  of  claim." 

1  Mills  V.  Barber,  1  M.  &  W.  425;  Tyr.  &  Gr.  835;  5  Dowl.  77,  S.  C. ;  Whit- 
taker  V.  Edmunds,  1  M.  &  Eob.  366,  per  Patteson,  J. ;  Fitch  v.  Jones,  5  E.  & 
B.  238.  2  gee  per  Alderson,  B.,  in  Elkin  v.  Janson,  13  M.  &  W.  664. 

*  Lewis  V.  Parker,  4  A.  &  E.  838;  .Jacob  v.  Hungate,  1  M.  &  Eob.  445,  per 
Parke,  B. ;  Brown  v.  Philpot,  2  id.  285,  per  Ld.  Denman.  See,  also,  Smith  v. 
Martin,  C.  &  Marsh.  58. 

*  The  fact  that  a  note  was  given  for  a  wager  on  the  hop  duty,  when  that 
duty  was  subject  to  fluctuation,  was  held  not  to  render  the  instrument  illegal 
within  this  rule,  for  such  a  wager  was  only  a  promise  which  the  law  would 
not  enforce,  Fitch  v.  Jones,  24  L.  J.,  Q.  B.  293;  5  E.  &  B.  238,  S.  C. 

(3213) 


34G  EFFECT  OF  PRESUMPTIONS  IN  SHIFTING  ONUS.        [PART  II. 

was  traversed  by  the  replication,  the  plaintiff  was  required  to  prove 
his  traverse,  because  the  presumption  of  illegality  arising  from  an 
admitted  fraud  was  held  to  attach  to  every  subsequent  holder,  and 
rendered  him  incapable  of  recovering  in  the  absence  of  evidence, 
showing  under  what  circumstances  he  became  possessed  of  the  bill.' 
If,  too,  in  such  a  case  as  that  just  put,  the  plaintifif,  in  accordance 
with  the  present  practice  of  pleading,"  were  to  meet  the  statement  of 
defence  by  a  general  denial,  and  the  defendant  at  the  trial  were  to 
give  evidence  of  fraud,  the  burthen  of  proving  consideration  would 
by  such  evidence  be  shifted  on  the  plaintiff.^  So,  where  in  answer  to 
an  action  on  a  promissory  note  brought  by  the  indorsee  against  the 
maker,  the  defendant  pleaded  that  he  had  presented  a  petition  to  the 
Court  of  Bankruptcy,  and  that  the  note,  which  had  been  indorsed 
to  the  plaintiff  without  value,  had  been  given  to  the  indorser  in 
consideration  of  his  not  opposing  the  petition,  the  court  held, 
on  a  replication  de  injuria,  that,  as  soon  as  the  illegality  was 
proved,  the  onus  was  cast  upon  the  plaintiff  of  showing  that  he 
gave  value.* 

§  370.  Again,  if  the  plaintiff'  were  to  aver  that  a  certain  party    »  ^^2 

^  See  cases  cited  in  last  four  preceding  notes.  Also  45  &  46  V.,  c.  01,  ?  30, 
subs.  2;  and  Bingham  v.  Stanley,  2  Q.  B.  117;  1  G.  &  D.  237,  S.  C,  over- 
ruling Ld.  Denman's  decision  at  Nisi  Prius  as  reported  in  9  C.  &  P.  374.  In 
Elkin  V.  Janson,  13  M.  &  W.  664,  665,  Alderson,  E.,  observes,  "But  take 
the  case  of  fraud; — where  the  defendant,  who  is  sued  upon  a  bill  of  exchange, 
pleads  that  it  was  obtained  from  the  drawer  by  fraud  upon  the  part  of  A., 
and  that  A.  then  indorsed  it  to  the  holder;  there  i>roof  of  the  fraud  renders 
it  highly  probable  that  A.,  who  has  obtained  the  bill  from  the  drawer  by 
fraud,  and  has  not  been  able  to  get  anything  from  him,  would  hand  it  over 
to  some  one  else,  to  be  the  conduit-pipe  for  obtaining  value  for  it.  That 
raises  a  presumption,  until  some  answer  is  given,  that  there  has  been  no 
indorsement  for  value,  and  casts  upon  the  plaintifif,  after  this  general  evi- 
dence, the  necessity  of  negativing  that  presumption,  and  of  showing  that, 
although  the  above  inference  might  fairly  be  made  from  the  fact  of  there 
being  fraud  in  the  original  inception  of  the  bill,  value  has  in  fact  been  given 
for  it  by  the  indorsee."     See,  however,  Masters  v.  Barrets,  2  C.  &  Kir.  715. 

2  Rules  of  Sup.  Ct.,  1883,  Ord.  XIX.,  R.  18;  ante,  U  302,  304. 

3  Harvey  r.  Towers,  6  Ex.  R.  656;  Smith  v.  Brain,  16  Q.  B.  244;  Hogg  v. 
Skeen,  34  L.  J.,  C.  P.  153;  18  Com.  B.,  N.  S.  426,  S.  C;  Berry  v.  Alderman, 
14  Com.  B.  95;  Fitch  v.  Jones,  24  L.  J.,  Q.  B.  293;  5  E.  &  B.  238,  S.  C; 
Mather  v.  Ld.  Maidstone,  26  L.  J.,  C.  P.  58;  1  Com.  B.,  N.  S.  273,  S.  C;  Hall 
V.  Featherstone,  3  H.  &  N.  284. 

*  Bailey  v.  Bidwell,  13  M.  &  W.  73,  overruling  Paterson  v.  Hardacre,  4 
Taunt.  114. 

(3214) 


CHAP.  III.  ]       BURTHEN  OF  PROOF  IX  CRIMINAL  PROCEEDINGS.  347 

was,  at  a  specified  time,  of  sound  mind,  and  this  averment  were  tra- 
versed by  the  defendant,  the  latter  would  be  bound  to  prove  the 
negative  allegation  of  incompetency,  because  every  man  may  reason- 
ably be  presumed  to  be  sane  till  the  contrary  is  shown,  and  conse- 
quently, this  presumption  of  fact,  in  the  absence  of  evidence  to  the 
contrary,  would  equally  serve  the  plaintiff's  purpose,  as  though  he 
had  given  express  evidence  of  the  sanity.'  If,  however,  on  the  trial 
of  such  an  issue,  the  defendant  were  to  put  in  evidence  an  inquisi- 
tion finding  that  the  party  had  been  lunatic  prior  to  the  transaction 
in  question,  this  evidence,  though  not  conclusive,  would  be  sufficient 
to  shift  the  bui'then  of  proof  on  the  plaintiff,  who  relied  on  the  party's 
sanity.^  So,  if  a  will  duly  signed  and  attested  be  impugned  in  the 
Probate  Division  of  the  High  Court,  on  the  ground  of  the  testator's 
insanity,  the  onus  of  proof  will  lie  on  the  impugnerf  but  if  it  be 
shown  that  the  testator  was  insane,  or  even  subject  to  delusions,*  at 
any  time  prior  to  the  date  of  the  will,  or  within  a  few  years  after 
that  date,  the  buiihen  of  establishing  his  capacity  to  have  made  the 
will  in  question  will  be  shifted  on  the  propounding  party.* 

§  371.  On  the  twofold  ground  that  a  prosecutor  must  prove  every  ^  344 
fact  necessary  to  substantiate  his  charge  against  a  prisoner,  and  that 
the  law  will  presume  innocence  in  the  absence  of  convincing  evidence 
to  the  contrary,  the  burthen  of  proof,  unless  shifted  by  legislative 
interference,  will  fall  in  criminal  proceedings  on  the  prosecuting 
party,  though,  in  order  to  convict,  he  must  necessarily  have  recourse 
to  negative  evidence.  Thus,  if  a  statute,  in  the  direct  description 
of  an  offence,  and  not  by  way  of  proviso,  contain  negative  matter, 

1  See  Sutton  v.  Sadler,  26  L.  J.,  C.  P.  284;  3  Com.  B.,  N.  S.  87,  S.  C; 
Dyce  Sombre  v.  Troup,  Deane,  Ec.  R.  38,  49. 

*  Hassard  v.  Smith,  I.  E.,  6  Eq.  429. 

^  A  contrary  rule  prevails  in  Massachusetts,  Crowninshield  v.  Crownin- 
shield,  2  Gray,  524;  and  see  Anderson  v.  Gill,  3  Macq.,  Sc.  Cas.  H.  of  L.  197, 
per  Ld.  Wensleydale;  and  Smee  v.  Smee,  L.  R.,  5  P.  D.  91;  49  L.  J.,  P.  D. 
&.  A.  13,  S.  C. 

*  Smee  v.  Smee,  L.  R.,  5  P.  D.  84,  per  Sir  J.  Hannen;  49  L.  J.,  P.  D.  & 
A.  8,  S.  C. 

5  Waring  v.  Waring,  6  Moo.  P.  C.  R.  341,  355—357,  368,  369,  per  Ld. 
Brougham  ;  6  Ec.  &  Mar.  Cas.  394—396,  S.  C. ;  Fowlis  v.  Da\idson,  6  Ec.  & 
Mar.  Cas.  473,  474,  per  Sir  H.  Fust;  Grimani  v.  Draker,  6  id.  420—422,  441, 
per  id. ;  Prinsep  &  E.  India  Co.  v.  Dyce  Sombre,  10  Moo.  P.  C.  K.  232,  244— 
247;  ante,  I  197. 

(3215) 


348  BURTHEN  OF  PROOF  SHIFTED  BY  STATUTE.  [PART  II. 

the  indictmciit  or  information  must  also  contain  a  negative  allega- 
tion, wliich  must  in  general  be  supported  by  prima  facie  evidence.' 
Such  was  formerly  the  case  in  prosecuting  parties,  either  for  cours- 
ing deer  in  inclosed  grounds  without  the  consent  of  the  owner,^  or 
for  cutting  trees  without  such  consentf  and  although  the  old  sta- 
tutes, which  made  the  absence  of  consent  a  material  element  in  these 
offences,  are  now  repealed,  the  cases  decided  upon  them  will  illus- 
trate the  principle  under  discussion-  In  such  cases,  indeed,  it  is 
not  necessary  to  call  the  owner  himself  to  prove  that  no  consent  was 
given  by  him,  but  the  juiy  may  infer  the  absence  of  consent  from 
the  conduct  of  the  accused,  or  from  other  circumstances;  still,  some 
evidence  must  be  given, — as,  for  instance,  that  the  act  complained 
of  was  done  in  a  suspicious  manner,  or  at  an  unusual  hour,  or 
that  the  defendant,  when  detected,  endeavoured  to  escape,  or  the 
like, — which,  in  the  absence  of  counter  testimony,  would  afford 
ground  for  presuming  that  the  allegation  of  non-consent  was  true.* 


§  372.  The  necessity  of  giving  this  prima  facie  evidence  on  §  345 
the  part  of  the  prosecution  having  been  found,  in  the  great 
majority  of  criminal  cases,  not  only  useless,  but  highly  incon- 
venient, the  Legislature  has  in  many  instances  interfered,  some- 
times by  re-describing  the  offence,  and  omitting  all  mention  of 
the  negative  matter,^  but    generally,  by  expressly  enacting,  that 


^  E.  V.  Jarvis,  1  East,  644,  n.;  Taylor  v.  Humphries,  17  Com.  B.,  N.  S.  539, 
549;  Davis  v.  Scrace,  4  Law  Rep.,  C.  P.  172;  38  L.  J.,  M.  C.  79,  S.  C.  nom., 
Davis  V.  Scrase;  Morgans.  Hedger,  5  Law  Rep.,  C.  P.  485;  40  L.  J.,  M.  C, 
13,  S.  C;  Copley  v.  Burton,  5  Law  Rep.,  C.  P.  489. 

2  R.  V.  Allen,  1  Moo.  (J.  C.  154;  42  G.  3,  c.  107,  ^  1,  repealed  by  7  &  8  G. 
4,  c.  27.  Other  provisions,  omitting  all  mention  of  consent,  are  now  substi 
tuted  by  24  &  25  V.,  c.  96,  §  13. 

2  R.  V.  Hazy,  2  C.  &  P.  458;  6  G.  3,  c.  36,  repealed  first  by  7  &  8  G.  4, 
c.  27,  and,  secondly,  by  30  &  31  V.,  c.  59.  Other  provisions,  omitting  all 
mention  of  consent,  are  now  substituted  by  24  &  25  V.,  C.-97,  §|  20,  21. 

*  See  R.  V.  Allen,  1  Moo.  C.  C.  154,  overruling  R.  v.  Rogers,  2  Camp.  654, 
Avhere  it  was  held  that  the  owner  must  be  called;  R.  v.  Wood,  Dear.  &  Bell, 
1,  overruling  R.  v.  Edge,  an  unreported  case,  said  to  have  been  decided  by 
Martin,  B.;  R.  t).  Hazy,  2  C.  &  P.  458;  R.  v.  Stone,  1  East,  639;  R.  v.  Haw- 
kins, 10  East,  211;  Frontine  v.  Frost,  3  B.  &  P.  302;  Evans  v.  Birch,  3  Camp. 
10.     See  ante,  |  113. 

*  See  the  two  notes  immediately  preceding  the  last. 

(3216) 


CHAP.  III.]  BURTHEN  OF  PROOF  SHIFTED  BY  STATUTE.  349 

the  burthen  of  proving  authority,  consent,  lawful  excuse,  and  the 
like,  should  lie  on  the  defendant.  Thus,  if  a  party  be  indicted 
for  being  found  by  night,  having  in  his  possession  any  picklock 
key,  crow,  jacl^,  bit,  or  other  implement  of  housebreaking;'  or 
for  buying  or  selling  at  an  undervalue,  or  for  exporting  or  im- 
porting, counterfeit  coin;^  or  for  making,  mending,  or  having  in 
his  possession  coining  tools,  or  for  conveying  such  tools,  or  any 
coin  or  bullion,  out  of  the  Mint;^  or  for  having  in  his  possession 
any  forged  dies  or  stamps,''  or  any  instruments  or  materials  for 
making,  either  letter  stamps,^  or  excise  paper,''  or  paper  used 
for  making  exchequer  bills,'  banks  notes, '^  the  notes  of  private 
bankers,^  or  foreign  notes;'"  or  for  manufacturing  paper  similar 
to  that  used  for  postage  covers,"  or  exchequer  bills ;''^  or  for 
having  in  possession  such  paper  before  it  has  been  stamped  and 
issued  for  use;'^  or  for  engraving  bank  notes  or  any  part  thereof,'* 
the  notes  of  private  bankers,  '^  or  foreign  notes;  "^  or  for  having  in 
possession  counterfeit  dies  for  making  gold  and  silver  wares,  or 
instruments  for  making  such  dies,  or  any  wares  of  gold,  silver,  or 
base  metal,  having  thereon  forged  dies;  "  or  for  having  in  possession 
hackney-coach  and  stage  plates,  or  drivers'  or  watermen's  tickets;'^ 
—in  all  these,  and  in  several  other  cognate  ofPences,''^  the  defendant, 
by  the  express  language  of  the  statutes  relating  to  them,  is  bound 
to  protect  himself,  by  showing  the  existence  of  some  lawful 
authority  or  excuse. 

§  373.  So,  if  a  party  be  charged  with  applying  any  marks  ap-    ^  345 

^  24  &  25  v.,  c.  56,  |  58.  ^  24  &  25  V.,  c.  99,  U  6,  7,  8,  14,  19. 

*  24  &  25  v.,  c.  99,  H  14,  24,  25.     See  R.  r.  Harvey,  1  Law  Rep.  C.  C.  284; 
40  L.  J.,  M.  C.  63,  S.  C.  *  33  &  34  V.,  c.  98,  §g  18,  22. 

*  3  &  4  v.,  c.  96,  I  22. 

6  2  W.  4,  c.  16,  ?  3;  11  &  12  V.,  c.  121,  I  18. 
T  24  &  25  v.,  c.  5,  ?  18;  24  &  15  V.,  c.  98,  §  9. 

'«  24  &  25  v.,  c.  98,  |  14.  »  Id.  §  18.  '«  Id.  ?  19. 

"  3  &  4  v.,  c.  96,  I  29. 

^2  24  &  25  v.,  c.  5,  §  18;  24  &  25  V.,  c.  98,  I  10. 

"  3  &  4  v.,  c.  96,  §  30;  24  &  25  V.,  c.  98,  ?i  11;  24  &  25  V.,  c.  5,  I  19. 
"  24  &  25  v.,  c.  98,  'il  16,  17.  ^*  Id.  ?  18. 

i«  Id.  U9.  "  7&8V.,c.  22,  §?2,3. 

18  6&  7V.,  c.  86,  I  20.     See  30  &  31  V.,  c.  134,  §  17. 

13  See  R.  V.  Edmundson,  28  L.  J.,  M.   C.  213;  and  17  G.  3,  c.  56,  I  10,  now 
repealed  by  24  &  25  V.,  c.  101. 

(3217) 


350  BURTHEN  OF  PROOF  SHIFTED  BY  STATUTE.  [pAET  11. 

propriateJ  to  Her  Majesty's  stores/  or  with  conveying  or  having  in 
his  posse_ssion  any  such  stores,  when  the  same  are  reasonably  sus- 
pected of  being  stolen  or  unlawfully  obtained,"  he  must, — as  soon 
as  proof  has  been  given,  or  an  inference  has  been  raised,  that  he 
has  acted  ^  "  knowingly," — either  prove  that  he  was  lawfully  autho- 
rised to  do  what  he  has  done,  or  at  least  furnish  some  satisfactory 
evidence  of  the  legality  of  his  conduct.^  In  any  prosecution,  too, 
under  the  direction  of  the  Commissioners  of  Customs,  in  respect 
of  goods  seized  for  non-payment  of  duties,  or  any  other  cause 
of  forfeiture,  or  for  recovering  any  penalty  under  any  Act  relating 
to  the  customs,  if  any  dispute  arise  whether  the  duties  of  cus- 
toms have  been  paid,  or  whether  the  goods  have  been  lawfully 
imported  or  unshipped,  or  concerning  the  place  whence  such 
goods  were  brought,  the  proof  in  every  such  case  lies  on  the 
defendant.^  So,  if  a  person  be  indicted  for  making  a  signal  to 
a  smuggling  vessel  at  sea,  the  burthen  of  proving  that  the  signal 
was  not  made  for  the  purpose  of  giving  illegal  notice  will 
lie  upon  the  defendant;**  and  if  any  goods  be  found  or  seized 
under  the  customs  laws,  they  will  be  deemed  to  be  run  goods, 
unless  the  owner  can  prove  the  contrary.^  So,  in  proceedings 
under  "  The  Seamen's  Clothing  Act,  1869,"  the  accused  must 
be  prepared  to  justify  his  conduct/  So,  under  "  The  Foreign 
Enlistment  Act,  1870,"  if  the  breach  of  neutrality  charged  relate 
to  the  delivery  of  a  ship  to  one  of  the  States  at  war,  the  burthen 
lies  on  the  builder  "  of  proving  that  he  did  not  know  that  the 
ship  was  intended  to  be  employed  in  the  military  or  naval  ser- 
vice of  such  State."^  So,  under  "  The  Merchant  Shi{>ping 
Act,  1876,"  any  person,  who  sends,  or  attempts  to  send,  or  takes  a 
ship  to  sea  in  an  unseaworthy  state  so  as  to  endanger  life,  is  guilty 
of  a  misdemeanor,  unless  he  proves  that  he  used  all  reasonable 
means  to  ensure  her  going  to  sea  in  a  seaworthy  state,  or  that  her 


1  38  &  39  v.,  c.  25,  H-  ^  ?  7.     See  also  US&9. 

^  R.  V.  Wilmett,   8  Cox,  281,   per  Coltman,  J.;  R.   v.  Cohen,  8  id.   41,  per 
Watson,  B.,  and  Hill,  J.;  R.  v.  Sleep,  L.  &  Cave,  44;  8  Cox,  472,  S.  C. 

*  R.  V.  Banks,  1  Esp.  146,  per  Ld.  Kenyon. 

*  39  &  40  v.,  c.  36,  §  259.  «  Id.  §  191.  '  Id.  §  178. 
«  32  &  33  v.,  c.  57,  U  4;  5.                                               "  33  &  34  V.,  c.  90,  g  9. 

(3218) 


CHAP.  III.]  BURTHEN  OF  PROOF  SHIFTED  BY  STATUTE,  351 

going  to  sea  in  an  unseawortby  state  was,  under  the  circamstances, 
reasonable  and  justitiable.'  So,  in  all  legal  proceedings  under 
"  The  Passengers'  Act,  1855,"  the  ship  in  question  will  be  taken 
to  be  within  the  provisions  of  the  statute,  unless  proof  to  the 
contrary  be  adduced."  So,  in  any  prosecution  under  the  Act  for 
preventing  accidents  by  Threshing  Machines,  if  it  be  shown  that  the 
machine  was  not  duly  fenced  while  working,  the  person  to  whom  it 
belongs  or  for  whom  it  has  been  used  shall  be  deemed  to  have 
permitted  such  neglect,  "  unless  he  satisfy  the  court  that  he  took 
all  reasonable  precautions  to  ensure  the  observance  of  the  Act."  ^ 
So,  if  any  person  be  charged  iinder  the  Army  Act,  1881,  with 
illegally  purchasing  from  soldiers  regimental  necessaries,  equip- 
ment, or  stores,  or  with  illegally  being  in  possession  of  any  such 
articles,  the  burthen  of  proving  that  he  has  acted  innocently  will  lie 
upon  him.*  So,  if  a  man  be  summoned  for  being  unlawfully  in 
possession  of  venison,  he  must  satisfy  the  magistrate  that  he  came 
lawfully  by  it;^  end  if  he  be  charged  with  knowingly  and  unlaw- 
fully having  on  his  premises  any  tree,  shrub,  post,  pale,  rail,  or  the 
like,  he  must,  on  pain  of  conviction,  give  a  satisfactory  account  of 
how  he  came  possessed  of  the  articles  found. "^  Persons,  too,  found 
in  possession  of  shipwrecked  goods  or  ofPering  such  goods  for  sale, 
are  bound  to  show  that  they  have  not  transgressed  the  law  in  taking 
them.^ 


§  373a.  So,  if  proceedings  be  inbtituted  against  any  person  for  ?  346 
having  or  keeping  an  unlicensed  theatre,  or  for  acting  for  hire 
therein,  and  it  be  proved  that  the  theatre  is  used  for  the  public 
performance  of  stage  plays,  the  burthen  of  proving  that  the  theatre 
is  duly  licensed  or  authorised  lies  on  the  accused.*  So,  in  any 
action  for  a  penalty  under  "  The  Public  Health  Act,  1875,"  for  im- 
properly acting  as  a  member  of  a  local  board,  the  burthen  of  proof 


'  39  &  40  v.,  c.  80,  I  4.  The  indictment  in  such  a  case  need  not  aver  that 
the  accused  knew  the  ship  was  unseaworthy,  or  negative  the  use  of  reason- 
able means  to  insure  her  going  to  sea  in  a  seaworthy  state.  R.  v.  Freeman, 
I.  R.,  9  C.  L.  527.  M8  &  19  v.,  c.  119,  ?  89. 

»  41  &  42  v.,  cl2,  ?  1-  M4  &  45  V.,  c.  58.  |  156,  subs.  1  &  2. 

6  24  &  25  v.,  c.  96,  ?  14.  «  24  &  25  V.,  c   96,  §  35 

'  Id.  U  G5,  66.  8  6  &  7  v.,  c.  68,  ^  17. 

(3219) 


352  BURTHEN  OF  PROOF  SHIFTED  BY  STATUTE.  [pART  II. 

is  in  great  measure  shifted  on  to  the  defendant.'  So,  in  the  hosiery 
and  silk-weaving  trades,  if  any  dispute  arises  between  the  manu- 
facturer and  the  workmen  respecting  the  alleged  imperfect  execution 
of  any  work,  which  has  been  delivered  to  the  manufacturer  or  his 
agent,  the  work,  if  not  produced  in  order  to  adjudication,  will  be 
deemed  to  have  been  properly  executed.^  So,  if  complaint  be  made 
that  a  person  employed  in  a  factory  or  workshop  without  a  surgical 
certificate,  is  under  the  prescribed  age,  and  the  Court  be  of  that 
opinion,  the  employer  shall  be  liable  to  penalties,  unless  he  can 
prove  that  the  party  employed  is  of  the  age  required.^  So,  in  any 
prosecution  of  a  chimney  sweeper  for  illegally  employing  a  climbing 
boy,*  and  in  any  proceeding  against  any  person  for  employing  a  child 
in  a  dangerous  performance,^  the  proof  of  the  age  of  the  person 
employed  lies  on  the  defendant;  and  on  the  hearing  of  any  infor- 
mation for  a  penalty  for  keeping  a  dog  without  a  license,  the 
accused  must  prove  the  age  of  the  dog  if  he  relies  on  the  animal 
being  a  mere  puppy.®  So,  if  a  pawnbroker  be  charged  with  certain 
offences  against  "  The  Pawnbrokers'  Act,  1872,"  he  will  be  required 
to  prove  some  lawful  or  reasonable  excuse  for  his  conduct.' 

§  374.  Again,  in  most  of  the  prosecutions  for  offences  against 
the  Bankrupt  Law,  the  accused  will  be  open  to  conviction  on  the 
sole  proof  of  his  having  committed  the  act  complained  of,  "  unless 
the  jury  is  satisfied  that  he  had  7io  intent  to  defraud,"  or,  "  to  con- 
ceal the  state  of  his  affairs,"  or,  "  to  defeat  the  law,"  as  the  case 
may  be.^  So,  if  any  person  be  charged  with  having  committed  an 
offense  against  "  The  Contagious  Diseases  Animals'  Act,  1878," 
the  burthen  of  proving  any  "  lawful  authority  or  excuse"  for  his 
conduct  will  lie  upon  him."  So,  if  a  consumer  of  gas  be  charged 
with  fraudulently  abstracting  it,  "  the  existence  of  artificial  means" 
for  altering  the  index  to  any  meter,  or  for  preventing  any  meter 
from  duly  registering,  or  for  abstracting,  consuming,  or  using  gas 

1  38  &  30  v.,  c.  55,  Sch.  2,  Rule  1,  sub-rule  70. 

2  8  &  9  v.,  c.  77,  §  3;  8  &  9  V.,  c.  128,  g  3 

'  41  v.,  c.  16,  §  92.  "  27  &  28  V.,  c.  .37,  |  10 

M2  &  43  v.,  c.  34,  H  Ml  v.,  c.  1.5,  U9. 

^  35  &  30  v.,  c.  93,  ^  23,  r.  4,  &  ?  31. 

«32&.33V.,  c.  62,  U  H,  12;  as  amended  by  46  &  47  V.,  c.  52,  §  163; 
35  &  36  v.,  c.  57,  F^H.  12,  Ir. 

"  41  &  42  v.,  c.  74,  ^'i  01,  02.  See  Huggins  v.  Ward,  8  Law  Rep.,  Q.  B.  D.,  521. 

(3220) 


CHAP  III.]  FACTS  PECULIARLY  WITHIN  KNOWLEDGE  OF  A  PARTY. 


353 


when  such  meter  is  under  the  consumer's  control,  shall  be  "  prima 
facie  evidence  that  such  alteration,  prevention,  abstraction,  or  con- 
sumption has  been  fraudulently,  knowingly,  and  wilfully  caused  by 
the  consumer.'"  A  similar  presumption  of  guilty  knowledge  is 
also  recognised  with  respect  to  water  when  supplied  by  measure." 

§  375.  In  accordance  with  the  law  as  just  illustrated,  "The  g  346b 
Prevention  of  Crimes  Act,  1871,"  ^ — after  showing  how  minor 
offences  against  that  Act  may  be  prosecuted, — goes  on  to  enact,  in 
subs.  3  of  §  17,  that  "any  exception,  exemption,  proviso,  excuse, 
or  qualitication,  whether  it  does  or  does  not  accompany  the  de- 
scription of  the  offence  in  this  Act,  may  be  proved  by  the  defendant, 
but  need  not  be  specified  or  negatived  in  the  information  or  com- 
plaint, and,  if  so  specified  or  negatived,  no  proof  in  relation  to  the 
matters  so  specified  or  oegatived  shall  be  required  on  the  part  of  the 
informant,  or  prosecutor,  or  complainant."  * 

^  375  and  notes  3  and  4.  All  the  enactments,  referred  to  in  this  sect,  and  the 
notes,  are  now  repealed  by  47  &  48  V.,  c.  43,  |  4,  and  Sched.,  excepting  34  & 
35  V.  c.  96,  §  20,  snbs.  3  ;  41  &  42  V.  c,  52,  ?  250,  Ir. ;  and  the  Summary  Jur- 
isdiction Act,  1879,  42  &  43  V.  c.  49,  ^  39,  subs.  2.  This  last  enactment  is 
henceforth  to  apply  to  all  proceedings  before  Courts  of  Summary  Jurisdiction. 

§  376.  In  several  of  the  instances  above  given,  the  Legislature  |  347 
has  adopted  a  principle  which  the  common  law  also  recognises, 
and  which  may  here  be  noticed  as  a  second  exception  to  the 
general  rule,  that  the  burthen  of  proof  lies  on  the  party  who 
substantially  alleges  the  afiirmative.  The  exception  is  this,  that 
where  the  subject  matter  of  the  allegation  lies  peculiarly  icithin 
the  knowledge  of   one  of  the    parties,    that   party  must    prove  it, 

1  34  &  35  v.,  c.  41,  I  38. 

2  38  &  39  v.,  c.  55,  ?  60  ;  41  &  42  V..  c.  52,  |  70,  Ir. 
»  34  &  35  v.,  c.  112. 

*  This  seems  to  be  a  fovourite  form  of  the  present  Parliamentary  draughts- 
man, for  it  will  be  found  in  many  other  Acts  passed  in  and  since  1871.  See 
The  Pedlars  Act,  1871,  34  &  35  V.,  c.  96,  'i  20,  subs.  3  ;  The  Petroleum 
Act,  1871,  34  &  35  v..  c.  105,  §  15,  subs.  5  ;  The  Infant  Life  Protection  Act, 
1872,  35  &  36  v.,  c.  38,  ?  11 ;  The  Mines  Regulation  Acts,  1872,  35  <Sc  36  V., 
c.  76,  ?  63,  r.  3  ;  and  c.  77,  ?  34,  r.  3  ;  The  Licensing  Act,  1872,  35  &  36  V., 
c.  94,  I  51,  r.  4  ;  Roberts  v.  Humphreys,  8  Law  Rep.  Q.  B.  483 ;  42  L.  J.,  M.  C. 
147,  S.  C;  The  Naval  Artillery  Volunteer  Act,  1873,  36  &  37  V.,  c.  77,  (i  36  ; 
The  Elementary  Education  Act  1873,  36  &  37  V.,  c.  86,  ^  24,  r.  2  ;  The  Pul)lic 
Health  Act,  1875,  3S  &  39  V.,  c.  55,  ?  252  ;  The  Public  Health,  Ireland,  Act, 
1878,  41  &  42  V.,  c.  .52,  ?  250;  The  Sujnmary  Jurisdiction  Act,  1879,  42  & 
43  v.,  c.  49,  §  39,  subs.  2  ;  The  Friendly  Societies  Act,  1875,  38  &  39  V.,  c. 
60,  g  33,  subs.  5  ;  The  Factory  and  Workshop  Act,  1878,  41  V..  c.  16,-  ?  91, 
subs,  3  ;  The  Weights  and  Measures  Act,  1878,  41  &  42  V.,  c.  49,  §  57,  subs, 
2  ;  and  The  Contagious  Diseases,  Animals,  Act,  1878,  41  &  42  V.,  c.  74,  §  66, 
subs.  2. 

(3221) 


354      FACTS  PECULIARLY  WITHIN  KNOWLEDGE  OF  A  PARTY.    [pART  II. 

whether  it  be  of  an  affirmative  or  a  negative  character,  and  even 
though  there  be  a  presumption  of  law  in  his  favour.'  Thus,  where 
an  action  for  penalties  was  brought,  under  the  old  law  against  a 
person  for  practising  as  an  apothecary  without  a  certificate,"  the 
plaintilf  would,  independent  of  this  exception,  have  been  bound 
to  prove  the  want  of  a  certificate;  for  first,  though  the  allegation 
was  in  a  negative  form,  its  proof  was  essential  to  the  plaintiff's 
case;  and  next,  the  law  might  fairly  presume  that  the  defendant 
would  not  transgress  the  provisions  of  a  statute;  still,  as  the  de- 
fendant was  peculiarly  cognisant  of  the  fact,  whether  or  not  he  had 
obtained  a  certificate,  and,  if  he  had  obtained  one,  could  have  no 
difficulty  in  producing  it,  the  law,  which  is  founded  on  general  con- 
venience, compelled  him  to  do  so.^ 

§  377.  This  exception  equally  prevails  in  all  civil  or  criminal  g  343 
proceedings  instituted  against  parties  for  doing  acts,  which  they 
are  not  permitted  to  do  unless  duly  qualified  ;  as  for  selling 
liquors,  sporting,*  exercising  a  trade  or  profession,  and  the  like.^ 
So,  in  an  action  for  penalties  against  the  proprietor  of  a  theatre, 
for  performing  dramatic  pieces  without  the  written  consent  of 
the  author,''  the  onus  of  proving  such   consent  lies  on   the  defen- 

1  Dickson  v.  Evans,  6  T.  E.  60,  per  Ashhurst,  J.  In  K.  v.  Turner,  5  M.  &  Sel. 
206,  Bay  ley,  J.,  says,  "I  have  always  understood  it  to  be  a  general  rule,  that 
if  a  negative  averment  be  made  by  one  party,  which  is  peculiarly  within  the 
knowledge  of  the  other,  the  party  Avithin  whose  knowledge  it  lies,  and  who 
asserts  the  affirmative,  is  to  prove  it,  and  not  he  avIio  avers  the  negative  ;"  but 
in  Elkin  v.  Janson,  1?>  M.  &  W.  662,  Alderson,  B.,  while  commenting  on  that 
passage,  observed,  "I  doubt,  as  a  general  rvrle,  whether  those  expressions  are 
not  too  strong.  They  are  right  as  to  the  weight  of  the  evidence,  but  there 
should  be  some  evidence  to  start  it,  in  order  to  cast  the  onus  on  the  other  side." 

2  Under  55  G.  3,  c.  194.     See,  now,  21  &  22  V.,  c.  90,  §  40. 
=*  Apoth.  Co.  V.  Bentley,  Ry.  &  INI.  159,  per  Abbott,  C.  J. 

*  The  Act  of  1  &  2  W.  4,  c.  32,  which  relates  to  Game,  enacts,  in  |  42,  that 
"it  shall  not  be  necessary,  in  any  proceeding  against  any  person  under  that 
Act,  to  negative  by  evidence  any  certificate,  licence,  consent,  authority,  or 
other  matter  of  exception  or  defence  ;  but  that  the  party  seeking  to  avail 
himself  of  any  such  certificate,  licence,  consent,  authority,  or  other  matter  of 
exception  or  defence,  shall  Ije  bound  to  prove  the  same." 

^  R.  V.  Turner,  5  M.  &  Sel.  206  ;  Smith  v.  Jeffries,  9  Price,  257  ;  Harrison's 
case,  Paley,  Conv.  45,  n.;  Sheldon  v.  Clark,  1  Johns.  513;  U.  S.  v.  Hayward, 
2  Gall.  485  ;  Gening  v.  The  State,  1  McC.  573.  See  Doe  v.  Whitehead,  8  A.  & 
E.  571  ;  cited  ante,  ^  367,  where  this  rule  was  held  inapplicable. 

8  Under  3  &  4  W.  4,  c.  15,  I  2. 

(3222) 


CHAP.  III.]  RULES  RESPECTING  THE  RIGHT  TO  BEGIN.  355 

dant.'  In  misprision  of  treason,  if  the  treason  be  proved,  and 
the  knowledge  of  it  be  traced  to  the  prisoner,  he  is,  in  strictness, 
bound  to  negative  the  averment  of  concealment,  by  offering  proof 
of  a  discovery  on  his  part."  The  same  rule  is  recognised  in  the 
Ecclesiastical  Courts;  and,  therefore,  if  proceedings  be  there  in- 
stituted against  a  clergyman  for  non-residence  without  licence  or 
exemption,  the  promoter  of  the  suit  need  neither  allege  nor  prove 
that  the  defendant  had  not  a  licence,  or  was  not  resident  on  another 
benefice.^ 


§  378.  The  rules  of  law  relating  to  the  burthen  of  proof  are  §  349 
obviously  of  great  importance  in  all  legal  proceedings,  especially 
when  viewed  in  connexion  with  the  doctrine  of  presumptions  ; 
but  questions  respecting  their  application  most  frequently  arise  at 
Nisi  Prius,  on  arguments  concerning  the  right  to  hegin.*  The 
privilege  of  opening  the  case  to  the  jury  is  frequently  one  of  con- 
siderable advantage,  as  it  not  only  enables  the  party  enjoying  it 
to  create  an  impression  in  his  favour,  which  it  may  be  difficult  by 
subsequent  evidence  to  erase,  but  in  the  event  of  witnesses  being 
called  by  his  opponent,  it  secures  to  him  also  the  last  word;  still, 
cases  sometimes  occur  where  a  defendant  goes  to  trial  relying 
simply  on  the  weakness  of  the  plaintiff's  case,  and  where,  if 
called  upon  to  begin,  he  will  instantly  be  defeated.^  Hence  it 
follows,  that  the  duty  of  beginning  is  seldom  a  matter  of  indiffer- 
ence, but  is  generally  regarded  as  an  object  which  it  is  important 
either  to  attain  or  to  avoid,  according  to  the  circumstances.  The 
question,  therefore,  is  frequently  discussed  with  much  spirit ;  and 
as  the  principles  which  govern  the  right  are  difficult  of  applica- 
tion, and,  moreover,  are  not  very  distinctly  understood,  the  decisions 

^  Morton  v.  Copelaad,  16  Com.  517. 

2  R.  V.  Thistlewood,  33  How.  St.  Tr.  691,  per  Abbott,  C.  J.,  in  cbarge  to  the 
Grand  Jury.  *  Bluck  v.  Rackman,  5  Moo.  P.  C.  R.  305,  314. 

*  On  the  hearing  of  appeals  in  equity  the  appellant  always   used  to  begin. 
Williams  v.  Williams,  2  Law  Rep.  Ch.  Ap.  15. 

5  Best  "  On  Eightto  Begin,'"  27,  28  ;  Edwards  v.  Jones,  7  C.  &  P.  633.  This 
was  an  action  by  the  indorsee  against  the  maker  of  a  note;  the  plea  in  sub- 
stance amounted  to  want  of  consideration,  and  the  plaintiff  replied,  as  to 
part  of  the  sum  claimed  that  he  gave  consideration  for  the  note,  and  as  to  the 
residue,  nolle  prosequi.  Held  by  Alderson,  B.,  that  on  this  issue  the  defendant 
must  begin,  and  as  he  had  no  witness,  the  plaintiff  had  a  verdict. 
2  LAW  OF  EVID. — V.  II.  (3223) 


356  RULES  RESPECTING  THE  RIGHT  TO  BEGIN.  [PART  II. 

are  alike  numerous  and  conflicting.  A  lengthened  examination  of 
these  decisions  would  be  misjilaced  in  a  work  of  this  nature,  but 
perhaps  a  few  general  rules  may  be  laid  down,  that  will  be  found  of 
practical  value. 

§  379.  The  first  general  rule  on  this  subject  is,  that  the  party  I  350 
on  ivhom  the  onus  probnndi  Ues,^  as  developed  on  the  record,  must 
begin.'  It  has  been  sometimes  asserted,  that  the  right  of  beginning 
belongs  to  the  party  on  whom  the  affirmative  of  the  issue  lies  ; 
but  this  assertion,  if  literally  understood,  is  by  no  means  accurate, 
since,  as  we  have  seen,  it  does  not  apply  to  cases  where  either  the 
afiirmative  allegation  is  supported  by  a  legal  presumption,  or  the 
truth  of  the  negative  averment  is  peculiarly  within  the  knowledge 
of  the  party  who  relies  on  it.'^  Indeed,  the  rule  as  stated  above 
is  subject  to  some  exceptions,  which  it  will  be  convenient  here  to 
notice.  And,  first,  if  the  defendant  will  admit  at  the  trial  the  whole 
prima  facie  case  of  the  plaintiff,  he  will  perhaps  be  entitled  to 
begin,  provided  he  was  not  bound  to  have  made  this  admission  by 
his  pleading  at  an  earlier  period.  For  instance,  if  a  party,  claiming 
premises  as  heir-at-law  of  the  person  last  in  possession,  brings  an 
action  to  recover  them  against  a  devisee  under  such  person's  will, 
the  defendant,  as  it  seems,  is  entitled  to  begin,  on  admitting  not  only 
that  the  plaintiff  is  heir,  but  that  the  ancestor,  through  whom  he 
claims,  died  seised  of  the  estate.* 

§  380.     But  this  exception  will  be  strictly  confined  to  cases  where    a  35J 
the  defendant  admits  Xheivhole  hYZe  of  the  plaintiff;  and,  therefore, 
if  a  defendant  in  an  action  to  recover  land  were  to  admit  at  the  trial  a 

'  As  to  the  best  tests  of  the  onus  probandi,  see  ante,  I  365. 

^  This  rule  is  recognised  in  the  Probate  Division  of  the  High  Court,  and 
therefore  where  a  husband  petitioned  lor  a  restitution  of  conjugal  rights,  and 
the  wife  answered  by  pleading  his  cruelty  on  which  issue  was  joined,  the 
respondent  was  held  entitled  to  begin;  Cherry  r.  Cherry,  1  Swab.  &  Trist. 
319;  28  L.  J.,  Pr.  &  Mat.  .36,  S.  C. 

3  Best  "  On  Right  in  Begin,''  29.     See  ante,  U  367,  376. 

*  Good  title  v.  Braham,  4  T.  II.  498;  Doe  v.  Brayne,  5  Com.  B.  670—674; 
Doe  V.  Barnes,  1  M.  &  Rob.  386,  per  Ld.  Denman ;  Doe  v.  Smart,  id.  476,  per 
Gurney,  B.,  after  consulting  Patteson,  J.  In  this  last  case  the  defendant  was 
allowed  to  begin,  though  the  plaintiff,  as  to  part  of  the  premises,  was  prepared 
to  prove  that  he  was  assignee  of  an  outstanding  term.  See  Kules  of  Sup.  Ct., 
1883,  Ord.  XXI.,  E.  21,  cited  ante,  p.  292,  n.  '. 

(3224) 


CHAP.  III.]  PLFF.  SEEIvING  UNLIQUIDATED  DAMAGES  MUST  BEGIN.     357 

will  under  -which  the  plaintiff  claimed,  and  were  to  rely  on  a  subse- 
quent devise  or  codicil,  he  would  not  be  allowed  to  begin;  because,  in 
such  case,  so  far  from  admitting  the  whole  title  of  the  plaintiff,  the 
defendant  would  expressly  deny  a  most  material  part  of  it;  for  by 
setting  up  a  second  will  or  codicil,  he  would  in  effect  assert  that  his 
opponent  was  not  devisee  at  the  time  or  the  testator's  decease.'  So, 
if  the  defendant's  title  rests  upon  a  conveyance  from  the  ancestor,^  or 
if  he  claims,  even  in  part,  under  the  ancestor's  marriage  settlement,^ 
he  cannot,  by  simply  admitting  the  heirship  of  his  opponent,  and 
his  own  possession,  deprive  the  former  of  his  right  to  begin,  because 
such  an  admission  will  not  cover  the  entire  title  of  the  plaintiff'. 
So,  where  each  party  claimed  as  heir-at-law,  and  the  defendant  was 
clearly  the  heir,  if  legitimate,  his  admission  of  the  plaintiff's  con- 
ditional title  was  held  insufficient  to  give  him  the  initiative,  because 
the  plaintiff,  in  order  to  recover,  must  prove  his  own  title;  and 
although  in  this  particular  case,  the  title  might  depend  on  the 
defendant's  legitimacy,  the  fact  of  legitimacy  did  not  constitute  the 
direct  issue.* 


§  381.  Another  exception  to  the  rule  under  discussion  rests  upon  2  353 
the  broad  principle  of  public  convenience  and  justice,  and  provides 
that  the  plaintiff  shall  begin  in  all  actions  where  he  seeks  sub- 
stantial and  tinliquidated  damages,  thovgh  the  affirmative  lie  iqoon 
the  defendant.  This  doctrine  was  promulgated  by  a  majority  of  the 
judges  many  years  back,  as  applicable  to  actions  for  libel,  slander, 
and  injuries  to  the  j^ersonf  and  the  Court  of  Queen's  Bench  after- 
wards extended  its  operation  to  actions  of  covenant  and  assumpsit, 
and  indeed,  as  it  would  seem,  to  all  actions,  where  the  plaintiff'  is 
seeking  to  recover  actual  damages  of  an  unascertained  amount.** 


^  Doe  V.  Brayne,  5  Com.  B.  655;  overruling  Doe  v.  Corbett,  3  Camp.  ."^6^, 
and  an  anonymous  case  cited  by  Ld.  Denman  in  Doe  v.  Barnes,  1  M.  &  Rob. 
388.  ^  Doe  v.  Tuck5r,  M.  &  M.  536,  per  Bolland,  B. 

■^  Doe  V.  Lewis,  1  C.  &  Kir.  12:2,  per  ]\Iaule,  J. 

*  Doe  V.  Bray,  M.  &  M.  166,  per  Vaughan,  B. 

5  Carter  i\  Jones,  6  C.  &  P.  64;  1  M.  &  Rob.  281,  S.  C. ;  Mercer  v.  Whall, 
5  Q.  B.  462,  per  Ld.  Denman.  It  deserves  notice  that  Parke,  B.,  nev§r 
assented  to  this  exception,  but  was  always  of  opinion  that  "in  all  cases,  he 
on  whom  the  burthen  of  proof  lay  ought  to  begin." 

8  See  Foley  v.  Tabor,  2  Fost.  &  Fin.  663. 

(3225) 


358  RIGHT  TO  BEGIN  WHEN  DAMAGES  ARE  LIQUIDATED.    [PART  II, 

§  382.  The  case  which  establishes  this  important  exception  is  §  354 
that  of  Mercer  v.  Whall,'  and  the  language  of  Lord  Denman,  in 
pronouncing  the  judgment  of  the  court,  well  illustrates  the  subject. 
After  observing  that  "  the  natural  course  would  seem  to  be,  that 
the  plaintiff  should  bring  his  own  cause  of  complaint  before  the 
court  and  jury  in  every  case  where  he  has  anything  to  prove,  either 
as  to  the  facts  necessary  for  his  obtaining  a  verdict,  or  as  to  the 
amount  of  damages  to  which  he  conceives  the  proof  of  such  facts 
may  entitle  him,"'  his  Lordship  proceeds  thus: — "In  ejectment, 
the  defendant  may  entitle  himself  to  begin,  by  admitting  that  the 
plaintiff  must  recover  possession  unless  the  defendant  can  establish 
a  certain  fact  in  answer;  and  if  in  an  action  for  damages  the  damages 
are  ascertained,  and  the  plaintiff  has  a  prima  facie  case  on  which  he 
must  recover  that  known  amount  and  no  more,  unless  the  defendant 
proves  what  he  has  affirmed  in  pleading,  here  is  a  satisfactory 
ground  for  the  defendant's  proceeding  at  once  to  establish  that  fact. 
But  if  the  extent  of  damages  is  not  ascertained,  the  plaintiff  is  the 
person  to  ascertain  it;  and  his  doing  so  will  have  the  good  effect  of 
making  even  the  defence,  in  a  vast  majority  of  cases,  much  more 
easily  understood  for  all  who  are  intrusted  with  the  decision."^ 

§  383.  This  last  exception  does  not  extend  to  cases  where  the  ^  355 
plaintiff  seeks  to  recover  a  debt,  or  a  liquidated  demand  in  money;* 
because  in  such  actions,  unless  a  specific  denial  of  the  claim  be 
placed  on  the  record,  the  plaintiff  is  not  required  to  give  any  evidence 
as  to  its  amount.  Neither  does  the  exception  apply  where  the 
damages  sought  to  be  recovered,  though  unliquidated,  are  obviously 
nominal,^  or  where  they  are  admitted  by  the  defendant,  so  far  as 


^  5  Q.  B.  447.  This  was  an  action  of  covenant  by  a  solicitor's  clerk  for  im- 
properly dismissing  him,  to  which  the  defendant  had  pleaded,  that  the  plaintiff 
had  been  s^ii^ty  of  misconduct  in  the  service.  The  co;irt  held  that  the  plaintiif 
was  entitled  to  begin.  ^  5  Q.  B.  458. 

3  5  Q.  B.  464,  4G5. 

*  Woodgate  v.  Potts,  2  C.  &  Kir.  457,  per  Parke,  B. ;  Fowler  v.  Coster,  M.  & 
M.  241,  per  Ld.  Tenterden;  3  C.  «&  P.  463,  S.  C;  Bonfield  v.  Smith,  2  M.  & 
Rob.  519;  Rules  of  Sup.  Ct.,  1883,  Ord.  XXVII.,  R.  2. 

^  Hodges  r.  Holder,  3  Camp.  366,  per  Bayley,  J. ;  Jackson  v.  Hesketh,  2 
Stark.  R.  518,  per  id. 

(3226) 


CHAP.  III.]  WHEN  PLAINTIFF  MUST  BEGIN.  359 

the  amount  is  concerned,'  or  where  they  can  be  ascertained  by  mere 
computation,  as,  for  instance,  where  the  action  is  brought  on  a  bill 
of  exchange  or  a  promissory  note;  ^  or  where  the  plaintifif  will  not 
say  whether  or  not  he  intends  to  proceed  for  substantial  damages.' 

§  384.  A  second  general  rule  respecting  the  right  to  begin  is,  §  336 
that  if  the  record  contains  several  issues,  and  the  burthen  of  proving 
any  one  of  them  lies  on  the  plaintiff,  he  is  entitled  to  begin,  provided 
he  ivill  undertake  to  give  evidence  upon  it.*  This  rule  will  equally 
prevail,  though  it  clearly  appears,  as  a  matter  of  calculation,  that  if 
the  defendant  should  eventually  succeed  on  one  of  the  issues  which 
he  is  bound  to  prove,  the  plaintiff  will  recover  nothing  on  the  issue 
which  lies  upon  him.^  But  the  proviso  at  the  end  of  the  rule  con- 
stitutes a  material  part  of  it;  and,  therefore,  if  to  some  special 
count,  claiming  liquidated  damages,  the  plaintiff  adds  the  common 
money  counts,  and  the  defendant,  confessing  and  avoiding  the 
former,  specifically  denies  the  latter,  this  will  not  entitle  the  plaintiff 
to  begin,  unless  in  fact  he  intends  to  rely  on  the  common  money 
counts,  and  to  adduce  evidence  in  support  of  them,  for  the  only 
object  of  an  opening  is  to  explain  to  the  jury  the  facts  which  are  to 
be  proved  by  the  witnesses. ** 

§  385.  If  several  issues  be  joined,  some  of  which  lie  on  either    §  357 
party,  the  plaintiff  may,  at  his  option,  go  into  the  whole  case'  in  the 
first  instance,  or  he  may  content  himself  with  adducing  evidence  in 
support  of  those  issues  which  he  is  bound  to  prove,  reserving  the 


1  Tindall  v.  Baskett,  2  Fost.  &  Fin.  644,  per  Erie,  C.  J. 

2  Cannam  v.  Farmer,  2  C.  &  Kir.  746;  3  Ex.  E.  698,  S.  C. ;  Eules  of  Sup.  Ct., 
1883,  Ord.  XXXVI. ,  R.  57. 

^  Chapman  v.  Rawson,  8  Q.  B.  673.  ' 

*  Rawlins  v.  Desborough,  2  M.  &  Rob.  328,  per  Ld.  Denman. 
^  Cripps  V.  Wells,  C.  &  Marsh.  489,  per  Rolfe,  B. ;  recognised  in  Booth  v. 
Millns,  15  M.  &  W.  669;  4  Dowl.  &  L.  52,  S.  C. 

^  «  Smart  v.  Rayner,  6  C.  &  P.  721,  per  Parke,  B. ;  Mills  v.  Oddy,  id.  728,  per 
id.,  overruling  Homan  v.  Thompson,  id.  717;  Faith  v.  M'Intyre,  7  C.  &  P. 
44,  per  id. ;  Oakeley  v.  Ooddeen,  2  Fost.  &  Fin.  656,  per  Byles,  J.  See  Edge 
V.  Hillary,  3  C.  &  Kir.  43.  There,  to  an  action  for  goods  sold,  defendant 
pleaded,  except  as  to  £150,  the  general  issue,  and  as  to  that  sum  a  special 
plea.  The  plaintiif 's  particulars  limited  his  demand  to  £150.  Held  by  Ld. 
Campbell  that  defendant  should  begin. 

(3227) 


360  WHEN  PLAINTIFF  MAY  RESERVE  REBUTTING  PROOF.  [PABT  21. 

right  of  rebutting  his  adversary's  proofs,  in  the  event  of  the  de- 
fendant establishing  a  prima  facie  case  with  respect  to  the  issues 
which  lie  upon  him.'  The  latter  course  is  the  one  which,  in 
practice,  is  most  usually  adopted,  and  the  defendant  may  then  have 
a  special  reply  on  the  plaintiff's  fresh  evidence,  while  the  plaintiff 
will  be  entitled  to  the  general  reply  on  the  whole  case.  If,  how- 
ever, the  plaintiff  at  the  outset  thinks  fit  to  call  any  evidence  to 
repel  the  defendant's  case,  he  will  not  be  permitted  to  give  further 
evidence  in  reply;  for  if  such  a  privilege  were  allowed  to  the 
plaintiff,  the  defendant,  in  common  justice,  might  claim  the  same, 
and  the  proceedings  would  run  the  risk  of  being  extended  to  a  very 
inconvenient  length.^  In  one  case,  where  the  general  issue  and  a 
set-off  were  pleaded  to  an  action  on  contract,  the  plaintiff  was  per- 
mitted to  prove  certain  debts  due  to  him  from  the  defendant,  and  to 
reserve  the  proof  of  the  remainder  of  his  claim  till  evidence  in  sup- 
port of  the  set-off  had  been  given  by  the  defendant;"  but,  although 
the  court  refused  a  new  trial  in  this  case,  it  may  well  be  doubted 
whether  such  a  course  would  now  be  allowed,  without  the  mutual 
consent  of  both  parties. 


§  386.  However  this  may  be,  it  is  tolerably  clear  that  where  there  g  353 
is  only  one  issue,  the  onus  of  proving  which  lies  on  the  plaintiff,  he 
must  put  forth  all  his  evidence  in  the  first  instance,  and  cannot  rely 
on  a  prima  facie  case,  and,  after  that  case  has  been  shaken  by  the 
defendant's  proof,  call  other  evidence  to  confirm  it.  Thus,  in  an 
action  by  the  indorsee  of  a  bill  against  the  acceptor,  where  issue  was 
raised  on  a  plea  denying  the  indorsement,  the  plaintiff  was  not 
allowed  to  rest  his  case  at  first  on  testimony  given  to  identify  the 
indorser's  handwriting,  and  after  evidence  for  the  defence  had  been 
given  that  he  was  himself  too  poor  to  have  discounted  the  bill,  and 


^  Formerly,  when  either  hy  pleading  or  notice,  the  defence  was  known,  the 
plaintiff  was  bound  to  open  his  whole  case,  Rees  v.  Smith,  2  Stark.  R.  30;  but 
this  practice,  having  been  found  inconvenient,  has  been  abandoned;  Browne 
V.  Murray,  Ry.  &  U.  254,  per  Abbott,  C.  J.;  Shaw  v.  Beck,  8  Ex.  R.  392.  See 
Penn  v.  Jack,  1  Law  "Rep.,  Eq.  314. 

^  Browne  v.  Murray,  Ry.  &  M.  254,  per  Abbott,  C.  J. ;  Sylvester  i-.  Hall,  id, 
255,  n.  per  id. 

3  Williams  v.  Davies,  1  C.  &  M.  464. 

(3228) 


CHAP.  HI.]    PRACTICE  AS  TO  CALLING  EVIDENCE  IN  REPLY.      361 

had  disclaimed  all   knowledge  of  it,  to  prove  that  in  fact  he  had 
discounted  the  instrument.' 


§  386a.  When  evidence  is  taken  by  affidavit  under  Order  XXXVIII. 
of  the  Rules  of  the  Supreme  Court,  1883,  it  is  expressly  provided  by 
R,  27,  — in  accordance  v^^ith  the  practice  described  in  the  preceding 
section, — that  the  plaintiff's  affidavits  in  reply  "shall  be  confined 
to  matters  strictly  in  rejjly.^^  Notwithstanding  the  precision  of  this 
language.  Vice- Chancellor  Hall  is  reported  on  a  recent  occasion  to 
have  set  the  rule  at  nought,  and  to  have  held  that  a  plaintiff  was  at 
liberty  to  refrain  fi-om  overloading  his  case  with  evidence  in  the  first 
instance,  and  might  in  reply  bring  forward  additional  evidence  con- 
firmatory of  that  originally  given.^ 

§  387.  In  deciding  upon  the  admissibility  of  evidence  called  in  ?  359 
reply,  regard  must  be  had  to  the  circumstances  of  the  individual 
case,  and  considerable  latitude  will  necessarily  be  granted  to  the 
judge  in  the  exercise  of  his  discretion.^  Thus,  where  a  plaintiff  in 
ejectment  made  out  a  prima  facie  case  as  heir-at-law,  which  was 
met  by  a  will  being  proved  for  the  defendant,  he  was  permitted,  in 
reply,  to  put  in  a  subsequent  will  whereby  the  estates  claimed  were 
devised  to  himself  ;  for  although  this  will  proved  him  to  be  entitled 
to  the  premises  as  devisee,  and  thus  set  up  a  title  different  from 
that  on  which  he  originally  relied,  it  operated  also  as  a  revocation  of 
the  former  will,  and  thus  demolished  the  defendant's  case.*  So,  in 
an  action  for  negligent  driving,  where  the  plaintiff,  as  confirmatory 
evidence  of  the  defendant's  having  committed  the  injury,  had 
offered  proof  that  about  the  time  in  question,  the  defendant  was  at 
Layton  where  the  collision  took  place,  and  the  defendant  had  called 
witnesses  to  show  that  he  was  then  at  Richmond,  Lord  Denman 
refused  to  exclude  further  witnesses,  who  were  tendered  by    the 


'  Jacobs  V.  Tarleton,  11  Q.  B.  421.  See  Wright  v.  Wilcox,  19  L.  J.,  C.  P. 
333  ;  9  Com.  B.  650,  S.  C. 

■^  Peacock  v.  Harper,  47  L.  J.,  Ch.  238  ;  L.   R.,  7  Ch.   D.   648,  S.  C.     Sed  qu. 

3  Wright  V.  Wilcox,  19  L.  J.,  C.  P.  333 ;  9  Com.  B.  650,  S.  C. 

*  Doe  V.  Gosley,  2  M.  &  Rob.  243,  per  Ld.  Denman.  Sed  qu.  as  to  the 
present  practice.  See  Rules  of  Sup.  Ct.,  1883,  Ord.  XXI.,  R.  21,  and  Ord. 
XXIII.,  R.  6,  cited  ante,  ?  301. 

(3229) 


3G2  PRACTICE  AS  TO  CALLING  EVIDENCE  IN  REPLY.  [pAET  II. 

plaintiff  to  prove  that  the  defendant  was  not  at  Richmond,  but  at 
Lay  ton,  when  the  accident  occurred.'  This  case  certainly  carries 
the  privilege  of  adducing  evidence  in  reply  to  its  extreme  limit;  for 
although  the  plaintiff  was  at  liberty  to  disprove  the  abili  by  showing 
that  the  defendant  was  not  at  Richmond,  yet  when  the  witnesses 
went  on  to  prove  that  he  was  at  Lay  ton,  they  not  only  gave  ervidence 
which  ought  to  have  been  submitted  to  the  jury  in  the  first  instance, 
but  confii-med  that  which  was  actually  given  in  chief,  and  which 
consequently  should  have  been  then  exhausted.^  Where  the  issue 
turned  on  the  soundness  of  a  horse,  which  was  exhibited  to  the  jury 
during  the  defendant's  case,  the  plaintiff  was  not  allowed  to  recall 
his  veterinary  witnesses,  who  had  attended  the  view,  to  give  their 
opinion  respecting  his  soundness,  these  gentlemen  having  had  an 
opportunity  of  inspecting  the  horse  before  the  plaintiff's  case  had 
closed.^ 


§  388.  The  question  respecting  the  right  to  begin  is  a  matter  of  §  360 
practice  and  regulation  upon  which  the  presiding  judge  must 
exercise  his  discretion  ;  and  the  court  will  not  interfere  with  his 
decision,  unless  it  be  clearly  proved,  not  only  that  the  ruling  on  this 
point  was  manifestly  ivrong,  but  that  it  has  occasioned  substantial 
injustice.*  It  seems  that  the  court  will  not  grant  a  new  trial, 
merely  because  the  judge  has  either  admitted  evidence  in  reply, 
which  should  in  strictness  have  been  produced  in  support  of  the 
plaintiff's  original  case,'*  or  has  prevented  the  plaintiff  from  calling 
witnesses  in  anticipation  of  the  defendant's  case,  provided  such  wit- 
nesses be  subsequently  examined  in  reply.^ 


^  Briggs  V.  Aynsworth,  2  M.  &  Rob.  168. 
•  *  See  note  a  to  S.  C.  pp.  169,  170. 

^  Osborn  v.  Thompson,  2  M.  &  Rob.  2.54,  per  Erskine,  J. 

*  Brandford  v.  Freeman,  5  Ex.  R.  734  ;  Edwards  v.  Matthews,  16  L.  J.,  Ex. 
291.  See,  also,  Burrell  v.  Nicholson,  1  M.  &  Rob.  306,  per  Ld.  Denman  ;  Bird 
V.  Higginson,  2  A.  &  E.  160  ;  Huckmau  v.  Fernie,  3  M.  &  W.  510,  511,  517; 
Doe  V.  Brayne,  5  Cora.  B.  655  ;  Booth  v.  Millns,  15  M.  &  W.  671,  n.;  4  Dowl. 
&  L.  52,  54,  n.,  S.  C. ;  Chapman  v.  Emden,  9  C.  &  P.  717,  per  Coleridge,  J.; 
Doe  V.  Rowlands,  id.  736,  per  id. ;  Mercer  v.  Whall,  5  Q.  B.  447 ;  Geach  v. 
Ingall,  14  M.  &  W.  98,  99,  per  Pollock,  C.  B. 

s  Williams  v.  Davies,  1  C.  &  M.  465  ;  3  Tyr.  383,  S.  C. ;  Doe  v.  Bower,  16 
Q.  B.  805.  «  Smith  v.  Marrable,  C.  &  Marsh.  479. 

(3230) 


CHAP.  III.]  RULE  RESPECTING  THE  RIGHT  TO  REPLY.  363 

§  389.  The  right  to  begin  draws  after  it,  both  in  civil  and  g  3(ji 
criminal  proceedings,  the  right  to  reply,  whenever  the  adversary 
adduces  evidence  to  the  jury  in  support  of  his  case; '  but  the  mere- 
commenting  on  a  cash-book,  which  has  been  used  to  refresh  the 
memory  of  one  of  the  adverse  witnesses,  or  even  a  reference  to  parts 
of  this  book,  not  looked  at  by  such  witnesses,  will  not  entitle  the 
opposite  counsel  to  reply,"  neither  will  the  production  of  a  paper, 
which  the  judge  has  called  for  in  order  to  satisfy  his  conscience.^  If 
in  the  course  of  the  trial  it  shall  become  necessary  for  the  defendant 
to  call  witnesses,  for  the  purpose  of  informing  the  judge  upon  a 
question  respecting  the  admissibility  of  evidence,  the  plaintiff's 
counsel  will  not  thereby  be  entitled  to  the  last  word,  because  the 
evidence,  in  order  to  give  this  right,  must  be  produced  to  the  jury.* 
Where  several  prisoners  are  jointly  indicted,  and  one  of  them  calls 
witnesses,  the  counsel  for  the  prosecutor  has  a  strict  right  to  reply 
generally,  if  the  charge  be  a  joint  one,  and  the  evidence  affects  the 
prisoners  generally,  though,  if  the  charges  be  separate,  as  for 
stealing  and  receiving,  or  the  defence  be  a  separate  one,  as  an 
alibi,  he  should  confine  his  remarks  to  the  case  of  the  party  for 
whom  witnesses  have  appeared.^  "  If  the  only  evidence  called 
on  the  part  of  a  prisoner  is  evidence  to  character,  although 
the  counsel  for  the  prosecution  is  entitled  to  the  reply,  it  will  be  a 
matter  for  his  discretion  whether  he  will  use  it  or  not.  Cases  may 
occur  in  which  it  may  be  fit  and  proper  to  do  so."  *  Whether  the 
counsel  for  the  plaintiff  or  the  prosection  will  be  entitled  to  reply, 
if  the  defendant,  without  adducing  evidence,  opens  new  facts,  is  a 
point  not  yet  clearly  decided;  but  the  better  opinion  is  that  no  such 
right  can  be  claimed,  though  the  judge  may,  in  a  flagrant  case, 
permit  its  exercise.' 

^  Best  "  On  The  Bight  to  Begin,^^  85,  and  cases  there  collected. 
2  Pullen  V.  White,  3  C.  &  P.  434,  per  Best,  C.  J. 
»  Dowliug  V.  Finigan,  1  C.  &  P.  587,  per  Best,  C.  J. 

*  Harvey  v.  Mitchell,  2  M.  &  Rob.  366,  per  Parke,  B. ;  Dover  v.  Maestaer,  5 
Esp.  96,  per  Ld.  Ellenborough.     See  ante,  |  23. 

*  R  V.  Hayes,  2  M.  &  Rob.  155,  per  Parke,  B.,  &  Coltman,  J.;  R.  v. 
Blackburn,  6  Cox,  339;  per  Talfourd  &  Williams,  Js.;  R.  r.  Jordan,  9  C.  & 
P.  118,  per  Williams,  J.;  R.  v.  Trevelli,  15  Cox,  289,  per  Hawkins,  J.;  R.  v. 
Kain,  15  Cox,  388,  per  Stephen,  J. 

«  Resolution  of  the  judges,  7  C.  &  P.  676. 

'  Crerar  v.  Rodo,  M.  &  ]SI.  85,  per  Ld.  Tenterden;  3  C.  &  P.  10,  S.  C.  See, 
in  favour  of  the  right,  R.  v.  Ilorne,  20  How.  St.  Tr.  664;  R.   v.   Bignold,   D.  & 

(3231) 


364  ATTORNEY-GENERAL  ENTITLED  TO  REPLY.  [PAKT  11. 

§  390.  On  the  trial  oi  public  ijrosecut ions,  whether  for  felony  or  ^  3^2 
misdeuieanoz-,  instituted  by  the  Crown,  the  law  officers  of  the 
Crown,  and,  perhaps,  those  who  represent  them,'  are  in  strictness 
entitled  to  reply,  although  no  evidence  be  adduced  on  the  part  of  the 
defendant; "  but  as  this  is  a  privilege,  or  rather  a  prerogative,  which 
stands  opposed  to  the  ordinary  practice  of  the  courts,  and  is,  em- 
phatically, "more  honoured  in  the  breach  than  the  observance," 
the  true  friend  of  justice  will  do  well  to  watch  with  jealousy  the  parties 
who  are  entitled  to  exercise  it.  Mr.  Home,  so  long  back  as  1777,  very 
properly  observed,  that  the  Attorney- General  would  be  grievously 
embarrassed  to  produce  a  single  argument  of  reason  or  justice  on 
behalf  of  his  claim;  ^  and  as  the  rule  which  precludes  the  counsel 
for  the  prosecution  from  addressing  the  jury  in  reply,  when  the  de- 
fendant has  called  no  witnesses,  has  been  long  thought  to  afford  the 
best  security  against  unfairness  in  ordinary  trials,  this  fact  raises  a 
natural  suspicion  that  a  contrary  rule  may  have  been  adopted,  and 
may  stitl  be  followed,  in  State  prosecutions,  for  a  less  legitimate 
purpose.  It  is  to  be  hoped  that,  ere  long,  this  question  will 
receive  the  consideration  which  its  importance  demands,  and  that 
the  Legislature,  by  an  enlightened  interference,  will  introduce 
one  uniform  practice  in  the  trial  of  political  and  ordinary  offenders.* 


R.,  N.  P.  59,  per  Abbott,  C.  J.;  4  D.  &  R.  70,  S.  C;  R.  v.  Carlile,  6  C.  &  P. 
643,  per  Park,  J.;  Best  "  On  The  Bight  to  Li  gin,"  92—94;  against  it,  Best,  Id. 
94—99;  Faith  v.  M'Intyre,  7  C.  &  P.  46,  per  Parke,  B.;  Stephens  v.  Webb, 
7  C.  &  P.  60;  R.  V.  Abingdon,  Pea.  R.  236,  per  Ld.  Keuyon;  Naish  v.  Brown, 
2  C.  «&  Kir.  219,  per  Pollock,  C.  B. 

J  See,  however,  observations  per  Martin,  B.,  in  R.  v.  Christie,  1  Fost.  &  Fin. 
75;  7  Cox,  506,  S.  C.  It  was  there  held  that  the  privilege  does  not  extend  to 
the  Att.-Gen.  of  the  County  Palatine.  Neither  does  it  extend  to  a  prosecu- 
tion directed  by  the  Poor  Law  Board,-  R.  v.  Beckwith,  7  Cox,  505,  per 
Byles,  J.  But  it  does  apply  to  Post-Office  Prosecutions,  and  to  the  Sol. -Gen., 
as  well  as  to  the  Att.-Gen.,  R.  v.  Toakley,  10  Cox,  406,  per  Mellor,  .T.;  R.  v. 
Barrow,  id.  407.  With  respect  to  the  Att.-Gen.  of  the  Prince  of  Wales,  see 
Att.-Gen.  of  P.  of  Wales,  v.  Cro.ssman,  4  H.  &  C.  568. 

2  Resolution  of  the  judges,  7  C.  «&  P.  676;  R.  v.  Home,  20  How.  St.  Tr.  664, 
per  Ld.  Mansfield;  R.  f.  Marsden,  M.  &M.  439,  per  Ld.  Tenterden.  The  .same 
unjust  rule  prevails  in  the  Revenue  side  of  the  Queen's  Bench  Div.,  in  all 
cases  where  the  Crown  is  concerned.  M.  ■  of  Chandos  v.  Comrs.  of  Inl. 
Rev.,  6  Ex.  R.  464;  2  L.  M.  &  P.  311,  S.  C,  nom.  D.  of  Buckingham  v. 
Comrs.  of  Inl.  Rev.  '  20  How.  St.  Tr.  663. 

*  Those  who  wish  for  further  information  respecting  the  subjects  discussed 
in  this  chapter  are  referred  to  Mr.  Best's  work  "  On  The  Bight  to  Begin.'" 

(3232) 


CHAP.  IV.]  BEST  EVIDENCE  MUST  BE  PRODUCED.  365 


CHAPTER  IV. 

BEST  EVIDENCE. 

§  391.'  The  fourth  rule,  which  governs  the  production  of  ^  3G3 
evidence,  requires  that  the  best  evidence,  of  ivhich  the  case  in  its 
nature  is  susceptible,  should  always  be  presented  to  the  jury.  This 
rule  does  not  demand  the  greatest  amount  of  evidence  which  can 
possibly  be  given  of  any  fact;  but  its  design  is  to  prevent  the  intro- 
duction of  any,  which,  from  the  nature  of  the  case,  supposes  that 
better  evidence  is  in  the  possession  of  the  party.  It  is  adopted  for 
the  prevention  of  fraud  ;  for  when  better  evidence  is  withheld,  it 
is  only  fair  to  presume,  that  the  party  has  some  sinister  motives 
for  not  producing  it,  and  that,  if  offered,  his  design  would  be 
frustrated.^  The  rule  thus  becomes  essential  to  the  pure  ad- 
ministration of  justice.  In  requiring  the  production  of  the  best 
evidence  applicable  to  each  particular  fact,  it  is  meant  that  no 
evidence  shall  be  received  which  is  merely  substitutionary  in  its 
nature,  so  long  as  the  original  evidence  is  attainable.^  Thus,  de- 
positions are  in  general  admissible  only  after  proof  that  the  parties 
who  made  them  cannot  themselves  be  produced.*  So,  a  preliminary 
agreement,  which  has  been  followed  up  by  the  execution  of  a  deed 
of  conveyance,  cannot  be  admitted  as  evidence  to  show  what  parcels 
were  subsequently  conveyed.^  But  every  title  by  deed  must  be 
proved  by  the  production  of  the  deed  itself,  if  it  be  within  the  power 


1  Gr.  Ev.  I  82,  in'part. 

'^  See  per  Best,  C.  J.,  in  Strother  v.  Barr,  5  Bing.  151  ;  per  Holroyd,  J., 
in  Brewster  v.  Sewell,  3  B.  &  A.  302;  per  Jervis,  C.  J.,  in  Twyman  v. 
Knowles,  13  Com.  B.  224;  Clifton  v.  U.  S.,  4  Howard,  S.  Ct.  R.  247,  248,  per 
Nelson,  J. 

=*  1  Phil.  Ev.  418;  1  St.  Ev.  500;  Glassf.  Ev.  266—278;  Tayloe  v.  Riggs, 
1  Pet.  591,  596;  U.  S.  v.  Rcyburn,  6  Pet.  352,  367;  Minor  v.  Tillotson,  7  Pet. 
100,101.  *B.  N.  P.  239. 

5  Williams  v.  Morgan,  15  Q.  B.  782. 

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3GG  BEST  EVIDENCE  MUST  BE  PRODUCED.  [PART  11. 

of  the  party;  for  this  is  the  best  evidence  of  which  the  case  is 
susceptible;  and  its  non-production  raises  a  presumption  that  it 
contains  some  matter  of  defeasance.  If  there  be  duplicate  originals 
of  a  deed,  all  must  be  accounted  for,  before  secondary  evidence  can 
be  given  of  any  one.' 


§  392.  Again,  if  an  instrument,  which  requires  attestation  to  give  g  363 
it  validity,"  be  produced,  its  execution  must  in  general  be  proved 
by  calling  the  subscribing  witness;'^  and  if  there  be  two  such  wit- 
nesses, it  will  not  be  sufficient,  so  long  as  one  of  them  is  alive,  sane, 
free  from  permanent  sickness,  within  the  jurisdiction  of  the  court, 
and  capable  of  being  found  by  diligent  inquiry,  to  prove  the  signa- 
ture of  the  other  who  is  dead;  for  such  evidence  would  merely  raise 
a  jjvesumption  that  the  deceased  had  witnessed  all  which  the  law 
requires  for  the  due  execution  of  the  instrument;  whereas  the  sur- 
viving witness  would  have  been  able  to  give  direct  proof.  Such 
direct  testimony,  therefore,  might  fairly  be  considered  as  evidence  of 
a  better  and  higher  nature  than  mere  presumption  arising  from  the 
proof  of  the  witness's  handwriting.* 

§  393.  The  rule  under  discussion  excludes  only  that  evidence  5  35^ 
which  itself  indicates  the  existence  of  more  original  sources  of  infor- 
mation; and,  therefore,  when  there  is  no  su.bstitution  of  inferior 
evidence,  but  only  a  selection  of  weaker,  instead  of  stronger  proofs, 
or  an  omission  to  supply  all  the  proofs  capable  of  being  produced, 
the  rule  is  not  infringed.^  For  instance,  where  an  instrument  is 
required  to  be  attested  by  two  witnesses,  it  is  only  necessary, — 
excepting  in  the  case  of  wills  relating  to  real  estate, — to  call  one 
of  them,  though  the  other  may  be  at  hand.^     Even  the  previous 


1  Alivon  r.  Furnival,  1  C.  M.  &  R.  292,  per  Parke,  B. 

2  See  17  &  18  V.,  c.  125,  |  26;  and  19  &  20  V.,  c.  102,  §  29,  Ir. 

^  Bowman  v.  Hodgson,  1  Law  Eep.,  P.  &  D.  362  ;  36  L.  J.,  Pr.  &  Mat.  124, 
S.  C.  Griffiths  r.  Griffiths,  in  Pr.  D.,  25  Oct.,  1884,  per  Butt,  J. 

*  Wright  V.  Doe  d.  Tathara,  1  A.  &  E.  21,  22,  per  Tindal,  C.  J. 

^  1  Ph.  Ev.  418.     See  Alfonso  v.  U.  S.,  2  Story,  R.  421,  426. 

«  Andrew  v.  Motley,  12  Com.  B.,  N.  S.  526;  Belbin  v.  Skeats,  27  L.  J.,  Pr. 
&  Mat.  56;  1  Swab.  &  Trist.  148,  S.  C;  Forster  v.  Forster,  33  L.  J.,  Pr.  & 
Matt.  113;  Ansty  v.  Dowsing,  2  Str.  1253;  B.  N.  P.  264;  Andrew  v.  Motley, 
12  Com.  B.,  N.  S.  527,  per  Byles,  S.;  Gresl.  Ev.  120,  122,  123. 

(3234) 


CHAP.  IV.]    PRIMARY  AND  SECONDARY  EVIDENCE — DISTINCTION.      367 

examination  of  a  deceased  subscribing  witness,  if  admissible  on  other 
grounds,  may  supersede  the  necessity  of  calling  the  survivor.'  So, 
in  proof  or  disproof  of  handwriting,  or  in  proof  of  the  contents  of 
a  letter  which  cannot  be  produced,  it  is  not  necessary  to  call  the 
supposed  writer."  Even  where  it  is  necessary  to  prove  negatively 
that  an  act  was  done  without  the  consent,  or  against  the  will,  of 
another,  the  person  whose  will  or  consent  is  denied,  need  not,  as  we 
have  seen,  be  himself  called.^ 


§  394.*  This  rule  naturally  leads  to  the  division  of  evidence  into  ^  -jgs 
PRIMARY  and  SECONDARY.  Primary  evidence  is  what  has  been  just 
mentioned  as  the  best  or  highest  evidence,  or,  in  other  words,  it  is 
that  kind  of  proof  which,  in  the  eye  of  the  law,  affords  the  greatest 
certainty  of  the  fact  in  question.  Until  it  is  shown  that  the  pro- 
duction of  this  evidence  is  out  of  the  party's  power,  no  other  proof 
of  the  fact  is  in  general  admitted.  All  evidence  falling  short  of 
this  in  its  degree  is  termed  secondary.  The  question  whether 
evidence  is  primary  or  secondary  has  reference  to  the  nature  of  the 
case  in  the  abstract,,  and  not  to  the  peculiar  circumstances  under 
which  the  party,  in  the  particular  cause  on  trial,  may  be  placed. 
It  is  a  distinction  of  law,  and  not  of  fact;  referring  only  to  the 
quality,  and  not  to  the  strength  of  the  proof.  Evidence,  which 
carries  on  its  face  no  indication  that  better  remains  behind,  is  not 
secondary,  but  primary. 


§  395.^  But  though  all  information  must,  if  possible,  be  traced    I  36o 
to  its  fountain  head,  yet  if  there  be  several  distinct   sources  of 
information  of  the  same  fact,  it  is  not  in   general   necessary  to 


1  Wright  V.  Doe  d.  Tatham,  1  A.  &  E.  3. 

^  R.  V.  Hurley,  2  M.  &  Kob.  473;  Hughes'  case,  2  East,  P.  C.  1002;  M'Guire's 
case,  id.;  K.  v.  Benson,  2  Camp.  508;  Liebman  v.  Pooley,  1  Stark.  R.  167;  Bank 
Prosecutions,  R.  &  R.  378. 

=*  Ante,  I  371;  R.  v.  Hazy,  2  C.  &  P.  458;  R.  v.  Allen,  1  Moo.  C.  C.  154;  R. 
I'.  Hurley,  2  M.  &  Rob.  473,  where  it  Avas  held  that,  on  an  indictment  for  forging 
a  cheque,  the  party,  whose  name  is  supposed  to  be  forged,  need  not  be  called, 
either  to  disprove  the  handwriting,  or  to  show  that  he  did  not  authorise  any 
other  party  to  use  his  name.  *  Gr.  £v.  ^  84,  in  jjart. 

*  Gr.  Ev.  §  84,  as  to  first  four  lines. 

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368        CONTENTS  OF  DOCUMENTS  NOT  PROVABLE  BY  PAROL.      [pART  II. 

show  that  they  have  all  been  exhausted,  before  recourse  can  be 
had  to  secondary  evidence  with  respect  to  one  of  them.'  For  in- 
stance, if  it  be  requisite  to  prove  that  a  collector,  who  is  a  stranger 
to  the  suit,  has  received  certain  suras  of  money,  that  fact  may 
obviously  be  established  by  calling,  either  the  collector  himself,  or 
the  parties  who  paid  him,  and  both  these  modes  of  proof  are 
equally  primary.  But  suppose  the  collector  be  dead;  in  this  case 
the  only  primary  evidence  is  the  testimony  of  the  persons  from 
"whom  the  money  was  received.  Still  the  law  does  not  require  the 
production  of  these  persons,  but,  on  proof  of  the  collector's  death, 
it  will  admit  any  entries  in  his  book  acknowledging  the  receipt, 
though  such  entries  are  merely  secondary  evidence  of  the  fact  in 
issue;  and  if  the  book  be  in  the  hands  of  the  opposite  party,  who, 
after  notice,  refuses  to  produce  it,  even  secondary  evidence  of  its 
contents  will  be  admissible.^  The  distinction  between  this  case, 
and  that  of  the  two  subscribing  witnesses  to  an  instrument,  — 
where,  as  we  have  seen,^  proof  must  be  given  that  both  the  wit- 
nesses are  unable  to  be  called,  before  evidence  of  the  handwriting 
of  one  of  them  can  be  received, — seems  to  rest  on  this,  that  the 
attesting  witnesses  are  either  rendered  necessary  by  statute,  or  at 
least  have  been  solemnly  chosen  by  the  parties,  as  the  persons  on 
whose  united  testimony  they  wish  to  rely,  and,  consequently,  so 
long  as  one  of  them  can  be  called,  secondary  evidence  respecting  the 
other  cannot  be  admitted. 


§  396.*  The  cases  which  most  frequently  call  for  the  application  §  367 
of  the  rule  now  under  consideration,  are  those  which  relate  to  the 
substitution  of  oral  for  ivritten  evidence;  and  the  general  rule  of 
law  with  respect  to  this  subject  is,  that  the  contents  of  a  written 
instrument,  irhich  is  capable  of  being  produced,  must  be  j^roved  by 
the  instrument  itself,  and  not  by  parol  evidenced     This  rule,  which 


'  Cutbusli  r.  Gilbert,  4  Serg.  &  R.  555;  U.  S.  v.    Gibert,  2  Sumn.  19,  80,  81; 
1  Ph.  Ev.  421. 

2  Middleton  v.  Melton,  10  B.  &  C.  322,  327,  328,  per  Bayley  &  Parke,  Js. ; 
Barry  v.  Bebbington,  4  T.  R.  514.  '  Ante,  g  392. 

*  Gr.  Ev.  ?  85,  as  to  first  three  lines. 

5  The  Queen's  case,  2  B.  &  B.  289. 

(3236) 


CHAP.  IV.]    CONTENTS  OF  DOCUMENTS  NOT  PROVABLE  BY  PAROL.        369 

is  as  old  as  any  part  of  the  common  law  of  England,  has  ever  been 
regarded  with  favour,  and  mentioned  with  approbation  by  the 
judges.  "I'  have  always,"  said  Lord  Tenterden,  "acted  most 
strictly  on  the  rule,  that  what  is  in  writing  shall  only  be  proved 
by  the  writing  itself.  My  experience  has  taught  me  the  extreme 
danger  of  relying  on  the  recollection  of  witnesses,  however  honest, 
as  to  the  contents  of  written  instruments;  they  may  be  so  easily 
mistaken,  that  I  think  the  purposes  of  justice  require  the  strict 
enforcement  of  the  rule."  "  Lord  Wynford,  also,  in  another  case 
observes  :  "  I  seldom  pass  a  day  in  a  Nisi  Prius  court  without 
wishing  that  there  had  been  some  written  statement  evidentiary  of 
the  matters  in  dispute.  More  actions  have  arisen,  perhaps,  from 
want  of  attention  and  observation  at  the  time  of  a  transaction,  from 
the  imperfection  of  human  memory,  and  from  witnesses  being  too 
ignorant,  and  too  much  under  the  influence  of  prejudice,  to  give  a 
true  account  of  it,  than  from  any  other  cause.  There  is  often  a 
great  difficulty  in  getting  at  the  truth  by  means  of  parol  testi- 
mony. Our  ancestors  were  wise  in  making  it  a  rule,  that  in  all 
cases  the  best  evidence  that  could  be  had  should  be  produced  ;  and 
great  writers  on  the  law  of  evidence  say,  if  the  best  evidence  be 
kept  back,  it  raises  a  suspicion  that,  if  produced,  it  would  falsify 
the  secondary  evidence  on  which  the  party  has  rested  his  case. 
The  first  case  these  writers  refer  to  as  being  governed  by  this  rule 
is,  that  where  there  is  a  contract  in  writing,  no  parol  testimony  can 
be  received  of  its  contents,  unless  the  instrument  be  proved  to  have 
been  lost."  ^  One  of  the  main  reasons  for  the  adoption  of  this  rule 
is,  that  the  court  may  acquire  a  knowledge  of  the  whole  contents  of 
the  instrument,  which  may  have  a  very  different  effect  from  the 
statement  of  a  part.* 

§  397.  It  cannot  be   denied  that  these  authorities  and  reasons    g  368 
are  entitled  to  the  greatest  weight,  and  the  rule  in  general  is  un- 
doubtedly a  wise  one  :  but  those  who  watch  its  practical  working 
must  be  strangely  prejudiced  in  its  favour,  if  they  are  blinded  to 
the  cruel  injustice  which  a  strict  observance  of  it  too  frequently 


'  Gr.  Ev.  ^  88,  in  part.  ^  Vincent  v.  Cole,  M.  &  M.  258. 

^  Strother  v.  Barr,  5  Bing.  151.  *  The  Queen's  case,  2  B.  &  B.  287. 

(3237) 


370  AVAXT    OF    PROPER    STAMP,    UOW    CURED    AT    TRIAL.      [PART  II. 

entails  upon  parties,  in  consequence  of  the  stamp  laws.^  The 
judges,  it  is  true,  are  wont  to  show  no  great  favour  to  stamp  objec- 
tions ;  and  some  years  ago  they  promulgated  a  rule,  that,  unless 
the  want  or  insufficiency  of  a  stamp  be  pointed  out  at  the  earliest 
possible  period,^  that  is,  as  soon  as  the  document  is  tendered  ia 
evidence,  the  objection  will  not  be  entertained.^  This  rule  is  of 
questionable  policy  ;  for  although  it  may  occasionally  promote  sub- 
stantial justice,  it  has  an  obvious  tendency  to  foster  sharp  practice. 
Modern  legislation  has  grappled  with  the  evil  in  a  more  straightfor- 
ward manner,  and  has  done  much  to  alleviate  the  oppressive  opera- 
tion of  the  stamp  laws,  so  far  as  the  administration  of  justice  is 
concerned.  In  the  criminal  courts,  no  objection  can  now  be  taken 
to  the  admissibility  of  any  document  in  evidence  for  want  of  a  suffi- 
cient stamp;  ^  and  in  the  civil  courts  an  attempt  has  been  made, 
as  the  Common  Law  Commissioners  express  it,*  "  to  reconcile  the 
claims  of  justice  with  the  interests  of  the  revenue,  by  enabling  all 
such  instruments  as  may  be  stamped  after  execution  to  be  received 
in  evidence,  though  unstamped,  or  insufficiently  stamped,  if  the 
party  who  tenders  them  is  prepared  at  the  trial  to  pay  to  the  officer 
of  the  court  the  proper  duty  ^  and  penalty.'^     The  Rules  of    the 

^  See  per  Ld.  Tenterden,  in  Eeid  v.  Batte,  M.  &  M.  414. 

^  Robinson  v.  Ld.  Vernon,  7  Com.  B.,  N.  S.  235.     See  ante,  ?  309. 

3  33  &  34  v.,  c.  97,  ill.  *  2nd  Rep  p.  26. 

^  A  document  to  be  "duly  stamped"  must  be  stamped  "in  accordance 
with  the  law  in  force  at  the  time  when  it  was  first  executed,"  33  &  34  V., 
c.  97,  ?  17  ;  Clarke  r.  Roche,  47  L.  J.,  Q.  B.  147. 

®  33  &  34  v.,  c.  97,  ?  16,  enacts,  that  "upon  the  production  of  an  instrument 
chargeable  with  any  duty  as  evidence  in  any  court  of  civil  judicature  in  any 
part  of  the  United  Kingdom,  the  officer,  whose  duty  it  is  to  read  the  instru- 
ment, shall  call  the  attention  of  the  judge  to  any  omission  or  insufficiency  of 
the  stamp  thej-eon  ;  and  if  the  instrument  is  one  which  may  legally  be  stamped 
after  the  execution  thereof,  it  may,  on  payment  to  the  officer  of  the  amount  of 
the  unpaid  duty,  and  the  penalty  payable  by  law  on  stamping  the  same  as 
aforesaid,  and  of  a  further  sum  of  one  pound,  be  received  in  evidence,  saving 
all  just  exceptions  on  other  gi-ounds.  The  officer  receiving  the  said  duty  and 
penalty  shall  give  a  receipt  for  the  same,  and  make  an  entry  in  a  book  kept  for 
that  purpose  of  the  payment  and  of  the  amount  thereof,  and  shall  communicate 
to  the  Commissioners  the  name  or  title  of  the  cause  or  proceeding  in  which, 
and  of  the  party  from  whom,  he  received  the  said  duty  and  penalty,  and  the 
date  and  description  of  the  instrument,  and  shall  pay  over  to  the  Receiver- 
General  of  Inland  Revenue,  or  to  such  other  person  as  the  Commissioners  may 
appoint,  the  money  received  by  him  for  the  said  duty  and  penalty."  This 
section  is  rendered  applicable  to  arbitration  by  44  V.,  c.  12,  I  44,  subs.  (a). 

(3238) 


CHAP.  IV.]  ORAL  TESTIMONY,  WHEN  WRITING  REQUIRED.  371 

Supreme  Court,  .1883,  by  Orel.  XXXIX.,  R.  8,'  farther  provide  that 
"a  new  trial  shall  not  be  granted  by  reason  of  the  ruling  of  any  judge 
that  the  stamp  upon  any  document  is  sufficient,  or  that  the  document 
does  not  require  a  stamp;"  and  this  provision, — which  impliedly 
restrains  a  judge  at  Nisi  Prius  from  reserving  for  the  court  any 
question  repecting  the  sufficiency  of  a  stamp  on  a  document 
admitted  by  him  at  the  trial," — will  doubtless  be  productive  of  much 
benefit  to  the  suitor,  by  relieving  him  from  the  annoyance  and  cost 
of  a  second  inquiry  into  a  mattei",  which  cannot  have  any  possible 
connexion  with  the  real  question  in  dispute. 


§  398.  Returning  now  to  the  rule,  which  requires  the  contests  of  ^  369 
a  document  to  be  proved  by  the  document  itself,  if  its  production  be 
possible,  it  will  be  found  that^  the  cases  on  the  subject  may  be 
arranged  in  three  classes  ;  the  first  class  relating  to  those  instru- 
ments which  the  law  requires  to  be  in  writing;  the  second,  to  those 
contracts  which  the  parties  have  put  in  writing;  and  the  third,  to 
all  other  writings,  the  existence  or  contents  of  which  are  disputed, 
and  which  are  material  to  the  issue.* 

§  399.^  And,  first,  oral  evidence  cannot  be  substituted  for  any  o  ^--q 
instrument  which  the  law  requires  to  be  in  writing;  such  as  records, 
public  and  judicial  documents,  official  informations'^  or  examinations, 
deeds  of  conveyance  of  lands,  wills,  other  than  nuncupative,  acknow- 
ledgements under  Lord  Tenterden's  Act,  promises  to  pay  the  debt  of 
another  person,  and  other  Avritings  mentioned  in  the  Statute  of 
Frauds.  In  all  these  casps  the  law  having  required  that  the  evidence 
of  the  transaction  should  be  in  writing,  no  other  proof  can  be  sub- 
stituted for  that,  so  long  as  the  writing  exists,  and  is  in  the  power 
of  the  party.     Thus,  for  example,  parol  evidence  is  inadmissible  to 


'  The  Irish  Act,  19  &  20  V.,  c,  102,  contains  in  g  37  a  similar  provision. 

2  Siordet  v.  Kuczinski,  17  Com.  B.  251  ;  Tattersall  v.  Fearnley,  id.  368  ; 
Cory  r.  Davis,  14  Com.  B.,  N.  S.  370.  '  Gr.  Ev.  §  85,  in  part. 

*  Tlie  (juestion  how  far  witnesses  may  be  cross-examined  as  to  written  state- 
ments made  by  them  without  producing  the  writings,  will  be  discussed  here- 
after.    See  post,  ^  1446,  et  seq. 

^  Gr.  Ev.  ?  86,  as  to  first  six  lines. 

6R.  r.  Dillon,  14  Cox,  4. 

3    LAW  OF  EVID. — V.  II.  (3239) 


372  ORAL  TESTIMONY,  WHKN  INADMISSIBLE,  [PAET  II. 

prove  at  what  sittings  or  assizes  a  trial  at  Nisi  Prius  came  on,'  or 
even  that  it  took  place  at  all;  but  the  record,  or  at  least  the  postea, 
must  be  produced."  So,  the  date  of  a  party's  apprehension  for  a 
particular  ofPence  cannot  be  shown  by  parol,  the  warrant  for  ap- 
prehension or  committal  being  superior  evidence.'*  So,  whenever 
the  testimony  of  a  witness  is  required  by  law  to  be  reduced  into 
writing, — as,  for  instance,  when  it  is  taken  by  depositions,  either 
before  an  Examiner  of  the  Court,  or  before  a  magistrate  on  an 
indictable  charge, — the  writing  becomes  in  all  subsequent  proceed- 
ings, whether  civil  or  criminal,  the  best  evidence  of  what  the 
witness  has  stated,  and  parol  proof  on  the  subject  is  consequently 
excluded  in  the  first  instance.*  So,  also,  parol  evidence  cannot  be 
received  of  the  statement  of  a  prisoner  before  the  magistrate, 
where  the  examination  has,  in  conformity  with  the  Act  of  11  &  12 
v.,  c.  42,  in  England,  or  the  Act  of  14  &  15  V.,  c.  93,  in  Ireland, 
been  reduced  into  writing,  and  subscribed,  and  returned  by  the 
justice.^ 

§  400.  If,  however,  the  written  examination  be  excluded  for 
informality," — other  than  for  having  been  taken  on  oath,  in  which 
case  the  confession  is  inadmissible  as  not  having  been  voluntarily 
made,^ — or  if  it  be  clearly  proved*  that  the  statement  was  not 
reduced  into  writing,  parol  evidence  is  admissible  to  show  what 
was  said  by  the  prisoner,  for  such  evidence  is  offered,  not  in  sub- 


'  Thomas  r.  Ansley,  6  Esp.  80,  per  Ld.  Ellenborougli ;  R.  r.  Page,  id.  83,  per 
Ld.  Kenyon  ;  as  explained  in  Whitaker  v.  Whisbey,  21  L.  J.,  C.  P.  116  ;  12 
Com,  B.  52,  S.  C,  cited  ante,  |  85. 

2  B.  N.  P.  24;] ;  R.  v.  lies,  Hard.  118;  R.  v.  Browne,  M.  &  M.  319;  3  C.  &  P. 
572,  S.  C. 

•^  R.  r.  Phillips,  R.  &  R.  369. 

*  Leach  r.  Simpson,  5  M.  &  W.  309;  post,  ?  416. 

^  R.  V.  Fearshire,  1  Lea.  202  ;  R.  r.  Jacobs,  id.  309.     See  post,  |  893,  et  seq. 

«^.  V.  Reed,  M.  &  M.  403,  per  Tindal,  C.  J.;  R.  v.  Christopher,  2  C.  &  Kir. 
994  ;  1  Den.  536,  S.  C. ;  post,  ?,  416. 

'  R.  V.  Wheeley,  8  C.  &  P.  250,  per  Alderson,  B. ;  R.  v.  Rivers,  7  C.  &  P. 
177,  per  Park,  J. 

*  See  Parsons  v.  Brown,  3  C.  &  Kir.  295,  where  Jervis,  C.  J.,  held  that  the 
court  could  not,  in  the  absence  of  positive  evidence,  presume  that  examinations 
before  justices  on  a  charge  of  felony  were  not  taken  down  in  writing,  so  as  to 
let  in  parol  evidence. 

(3240) 


CHAP.  IV.]     ORAL  TESTIMONY,  WHEN  CONTRACT  IN  WRITING.     .         373 

stitution  of  the  official  document,  since  no  such  document  in  that 
case  exists,  but  as  tlie  best  evidence  which  the  circumstances 
admit  of  being  produced.  So,  if  the  prisoner  was  examined  on 
two  occasions,  or  with  reference  to  two  offences,  and  the  exami- 
nation, signed  by  the  magistrates,  relates  only  to  what  occurred  on 
one  occasion,'  or  with  respect  to  one  offence,"  the  prosecutor  may 
call  any  party,  who  can  speak  to  statements  made  by  the  prisoner 
in  that  part  of  the  inquii-y  not  included  in  the  written  examination. 
In  like  manner,  if  a  witness,  having  given  a  written  deposition  in 
a  cause,  has  afterwards  testified  orally  in  court,  parol  evidence 
may,  in  the  event  of  his  death,  be  given  of  his  viva  voce  testimony 
notwithstanding  the  existence  of  the  deposition;^  for,  in  this  last 
case,  as  two  independent  sources  of  information  exist,  the  party 
who  relies  on  the  evidence  may,  at  his  discretion,  have  recourse  to 
either. 

§  401.*  In  the  second  place,  oral  proof  cannot  be  substituted 
for  the  iiTttten  evidence  of  any  contract  which  the  parties  have  put 
in  icriting.  Here  the  written  instrument  may  be  regarded,  in  some 
measure,  as  the  ultimate  fact  to  be  proved,  especially  in  the  case 
of  negotiable  securites;  and  in  all  cases  of  vs^ritten  contracts,, 
the  writing  is  tacitly  considered  by  the  parties  themselves  as  the 
only  repository  and  the  appropriate  evidence  of  their  agreement. 
The  written  contract  is  not  collateral,  but  is  of  the  very  essence 
of  the  transaction;^  and  consequently,  in  all  proceedings,  civil  or 


1  R.  r.  Wilkinson,  8  C.  &  P.  662,  per  Parke,  B.,  and  Littledale,  J.;  R.  v. 
Christopher,  2  C.  &  Kir.  994;  1  Den.  5:i6,  S.  C. 

2  R.  V.  Harris,  1  Moo.  C.  C.  338. 

3  Tod  V.  E.  of  Winchelsea,  3  C.  &  P.  387,  per  I.d.  Tenterden. 
*  Gr.  Ev.  I  87,  in  part. 

^  See  R.  V.  Castle  Morton,  3  B.  &  A.  590,  per  Abbott,  C.  .T.  The  principles 
on  which  a  document  is  deemed  part  of  the  essence  of  any  transaction,  and 
consequently  the  best  of  primary  proof  of  it,  are  thus  explained  by  Domat. — 
"The  force  of  written  proof  consists  in  this:  men  agree  to  preserve  by  writing 
the  remembrance  of  past  events,  of  which  they  wish  to  create  a  memorial, 
either  with  a  view  of  laying  down  a  rule  for  their  own  guidance,  or  in  order  to 
have,  in  the  instrument,  a  lasting  proof  of  the  truth  of  what  is  Avritten.  Thus 
contracts  are  written,  in  order  to  preserve  the  memorial  of  what  the  contracting 
parties  have  prescribed  for  each  other  to  do,  and  to  make  for  themselves  a  fixed 
and  immutable  law,  as  to  what  has  been  agreed  on.     So,  testaments  are  written, 

(3241) 


37-Jr  ORAL  TESTIMONY,  WHEN  LEASE  EXISTS.  [PART.  II, 

criminal,  in  which  the  issue  depends  in  any  degree  upon  the  terms 
of  a  contract,  the  party  whose  witnesses  show  that  it  was  reduced 
to  writing,  must  either  produce  the  instrument,  or  give  some  good 
reason  for  not  doing  so.  Thus,  for  example,  if  in  an  action  to  recover 
land  against  an  overholding  tenant,  or  in  an  action  for  the  use  and 
occupation  of  real  estate,  it  should  appear,  either  on  the  direct  or 
cross-examination  of  the  plaintifP's  witnesses,  that  a  written  con- 
tract of  tenancy  has  been  signed,  the  plaintiff  must  either  pro- 
duce it,  or  account  for  its  absence.'  So,  if  a  landlord  were  to  bring 
an  action  against  a  tenant  for  rent  and  non-repair,  and  it  should 
appear  that  the  parties  had  agreed  by  parol  that  the  tenant  should 
hold  the  premises  on  the  terms  contained  in  a  former  lease  between 
the  landlord  and  a  stranger,  a  nonsuit  would  be  directed,  unless 
this  lease  could  be  produced." 

§  402.  The  same  strictness  in  requiring  the  production  of  the  ^  373 
written  instrument  has  prevailed,  where  the  question  at  issue  was 
simply  what  amount  of  rent  was  reserved  by  the  landlord,^  or 
who  was  the  actual  party  to  whom  a  demise  had  been  made,*  or 
under  whom  the  tenant  came  into  possession;^  and  in  an  action 
for  the  price  of  labour  performed,  where  it  appeared  that  the  work 
was  commenced  under  an  agreement  in  writing,  but  the  plaintiff's 


in  order  to  preserve  the  remembrance  of  what  the  party,  who  has  a  right  to 
dispose  of  his  property,  has  ordained  concerning  it,  and  thereby  to  lay  down  a 
rule  for  the  guidance  of  his  heir  and  legatees.  On  the  same  principle  are 
reduced  into  writing  all  sentences,  judgments,  edicts,  ordinances  and  other 
matters,  which  either  confer  title,  or  have  the  force  of  law.  The  writing  pre- 
serves unchanged  the  matters  intrusted  to  it,  and  expresses  the  intention  of  the 
parties  by  their  own  testimony.  The  truth  of  written  acts  is  established  by 
the  acts  themselves,  that  is,  by  the  inspection  of  the  originals." — See  Domat's 
Civ.  Law,  Liv.  3,  tit.  6,  §  2,  as  translated  in  7  3Ionthly  Law  Mag.  p.  73. 

'  Brewer  r.  Palmer,  3  Esp.  213,  per  Ld.  Eldon;  Fenn  r.  Griffith,  6  Bing. 
533;  4  M.  &  P.  299,  S.  C. ;  Henry  r.  M.  of  Westmeath,  Ir.  Cir.  R.  809,  per 
Richards,  B.;  Thunder  v.  Warren,  8  Ir.  Law  R.  181;  Eudge  v.  M'Carthy,  4 
id.  161. 

"^  Turner  r.  Power,  7  B.  &  C,  625;  M.  &  M.  131,  S.  C. 

'  R.  V.  Merthyr  Tidvil,  1  B.  &  Ad.  29;  Augustien  v.  Challis,  1  Ex.  R.  280, 
where  Alderson,  B.,  observes,  "  you  may  prove  by  parol  the  relation  of  landlord 
and  tenant,  but  without  the  lease  you  cannot  tell  whether  any  rent  was  due." 

*  R.  V.  Rawden,  8  B.  &  C.  708;  3  M.  &  R.  426.  S.  C. 

5  Doe  V.  Harvey,  8  Bing.  2«9;  1  M.  &  Sc.  374,  S.  C. 

(3242) 


CHAP.  IV.]        ORAL  TESTIMONY  IN  CLAIM  FOR  EXTRA  WORK.  oT5 

claim  was  for  extra  work,  it  has  been  several  times  held  that,  in 
the  absence  of  positive  proof  that  the  work  in  question  was  entirely 
separate  from  that  included  in  the  agreement,  and  was  in  fact  done 
under  a  distinct  order,  the  plaintiff  was  bound  to  produce  the 
original  document,  since  it  might  furnish  evidence,  not  only  that 
the  items  sought  to  be  recovered  were  not  included  therein,  but 
also  of  the  rate  of  remuneration  upon  which  the  parties  had 
agreed.'  So,  where  an  auctioneer  delivered  to  a  bidder,  to  whom 
lands  were  let  by  auction,  a  written  paper  signed  by  himself,  con- 
taining the  terms  of  the  lease,  the  landlord  was  held  bound,  in 
an  action  for  use  and  occupation,  to  produce  this  paper  duly  stamped 
as  a  memorandum  of  an  agreement.^ 


§  403.  In  Whitford  i\  Tutin,''  the  plaintiff  had  been  employed 
as  secretary  to  the  committee  of  a  charitable  society,  pursuant  to 
a  resolution  entered  in  the  book  of  the  committee,  of  which,  during 
his  service,  he  had  had  the  care.  The  society  being  afterwards 
dissolved,  the  plaintiff  sued  some  of  the  members  of  the  com- 
mittee for  his  salary,  and  the  court  held  that  he  was  bound  to 
produce  the  book  under  which  he  was  engaged;  for  though  he  was 
no  party  to  the  original  resolution,  which  was  entered  into  before 
bis  appointment  as  secretary,  yet  by  accepting  the  situation  and 
the  benefit  attached  to  it,  he  must  be  taken  to  have  adopted 
the  terms  contained  in  the  resolution,  and  consequently  was 
bound  to  produce  the  book  to  show  what  those  terms  really  were. 
Whether  in  an  action  for  an  injury  done  to  the  plaintiff's  re- 
version, his  interest  as  reversioner  may  be  proved  by  the  parol 
testimony  of  the  tenant,   when  it  appears   that  the  premises  are 


'  Vincent  V.  Cole,  M.  &  M.  2r)7,  per  Ld.  Tenterden;  3  C.  &  P.  481,  S.  C; 
Buxton  V.  Cornish,  1  Dowl.  &  L.  583:  12  M.  &  W.  426,  S.  C. ;  Jones  v.  Howell, 
4  Dowl.  176;  Holbard  r.  Stephens,  5  Jur.  71,  Bail  C. ,  per  Williams,  J.;  Partou 
V.  Cole,  6  Jur.  37U,  Bail  C,  per  Patteson,  J.  See  Reid  v.  Batte,  M.  &  U.  413, 
cited  post,  §  405;  and  Edie  v.  Kingsford,  14  Com.  B.  759. 

?  Ramsbottom  v.  Mortley,  2  M.  &  Sel.  445.  See  Kamsbottom  v.  Tunbridge, 
id.  434,  cited  post,  ?.  406.  See,  .also,  Hawkins  v.  Warre,  3  B.  &  C.  697,  where 
Abbott,  C.  J.,  draws  the  distinction  between  papers  signed  by  the  parties  or 
their  agents,  and  those  which  are  unsigned. 

»  10  Bing.  395;  4  M.  &  Sc.  166,  S.  C. 

(3243) 


376  ORAL  TESTIMONY,  WHEN  ADMISSIBLE.  [PART  II. 

occupied  iinder  a  written  agreement,  may  admit  of  some  doubt. 
In  one  case  it  was  held  that  tbe  agreement  must  be  produced  ; ' 
but  in  a  later  case,  where  nominal  damages  only  were  recovered, 
and  independent  proof  was  given  of  the  premises  having  been  de- 
vised to  the  plaintiff,  the  judges  of  the  Court  of  Common  Pleas 
were  equally  divided  upon  the  question  whether  a  nonsuit  should 
be  entered,  the  plaintiff  having  omitted  to  produce  the  written 
agreement  between  the  occupier  and  himself.' 


§  404.  The  fact  that,  in  cases  of  this  kind,  the  writing  is  in  the  §  375 
possession  of  the  adverse  party,  does  not  change  its  character  ;  it 
is  still  the  primary  evidence  of  the  contract;  and  its  absence  must 
be  accounted  for  by  notice  to  the  other  party  to  produce  it,  or  in 
some  other  legal  mode,  before  secondary  evidence  of  its  contents 
can  be  received.  In  all  these  cases,  however,  if  the  plaintiff  can 
establish  a  prima  facie  case,  without  betraying  the  existence  of  a 
written  contract  relating  to  the  subject-matter  of  the  action,  he 
cannot  be  precluded  from  recovering  by  the  defendant  subsequently 
giving  evidence  that  the  agreement  was  reduced  into  writing  ;  but 
the  defen4ant,  if  he  means  to  rely  on  a  written  contract,  must  pro- 
duce it  as  part  of  his  evidence,^  and  in  the  event  of  its  turning  out 
to  be  unstamped,  or  insufficiently  stamped,  he  must  pay  the  duty 
and  penalty.  Nor,  in  such  a  case,  will  any  material  distinction  be 
recognised  in  the  defendant's  favour,  though  a  notice  to  produce  the 
document  has  been  served  on  the  plaintifP.^  In  an  action  of  eject- 
ment it  has  even  been  held,  that  the  plaintiff  could  not  be  turned 
round  by  one  of  his  witnesses  proving,  on  cross-examination,  that 
an  agreement,  which  he  only  knew  related  in  some  iraij  to  the  land 
in  question,  was  seen  on  that  morning  in  the  hands  of  the  plaintiff's  • 


'  Cotterill  v.  Hobl)y,  4  B.  &  C,  465. 

^  Strother  v.  Barr,  5  Bing.  136,  Best,  C.  J.,  and  Burroiigh,  J.,  in  favour  of 
a  nonsuit;  Park  and  Gaselee,  Js.,  cont. ;  2  M.  &  P.  207,  S.  C. 

»  Magnay  v.  Knight,  1  M.  &  Gr.  944;  2  Scott,  N.  R.  64,  S.  C;  Stephens  v. 
Pinney,  8  Taunt.  327;  2  Moore,  849,  S.  C;  Marston  v.  Dean,  7  C.  &  P.  13; 
Fry  V.  Chapman,  5  Dowl.  265;  R.  v.  Padstow,  4  B.  &  Ad.  208;  1  N.  «&;  M.  9, 
S.  C. ;  Reed  v.  Deere,  7  B.  &  C.  261,  266. 

*  Ante,  §  397. 

*  See  cases  cited  in  n.  3  supra. 

(3244) 


CHAr.  IV.]     COLLATERAL  WRITINGS  NEED  NOT  BE  PRODUCED.  377 

solicitor,  and  was  produced  at  a  former  trial  between  the  same 
parties;  for  the  court  held  that,  in  order  to  exclude  parol  evidence 
of  the  tenancy,  it  should  appear  that  the  agreement  was  between  the 
same  parties,  and  was  binding  at  the  time  of  the  second  trial; 
neither  of  which  facts  was  proved.' 


§  405.^  Where  the  written  communication  or  agreement  between  ^  370 
the  parties  is  collateral  to  the  question  in  issue,  it  need  not  be  pro- 
duced. Thus,  if  during  an  employment  under  a  written  contract,  a 
verbal  order  is  given  for  separate  work,  the  workman  can  perhaps 
recover  from  his  employer  the  price  of  this  work,  without  producing 
the  original  agreement,  provided  he  can  show  distinctly  that  the 
items,  for  which  he  seeks  rumeneration,  were  not  included  therein; 
as,  for  instance,  if  it  clearly  appears,  that  whilst  certain  work  was 
in  progress  in  the  inside  of  a  house  under  a  written  agreement,  a 
verbal  order  was  given  to  execute  some  alterations  or  improvements 
on  the  outside.^  So,  if  the  fact  of  the  occupation  of  land  is  alone 
in  issue,  without  respect  to  the  terms  of  the  tenancy,  this  fact  may 
be  proved  by  any  competent  parol  evidence,  such  as  payment  of  rent, 
or  the  testimony  of  a  witness,  who  has  seen  the  tenant  occupy,  not- 
withstanditig  it  apjjears  that  the  occupancy  was  under  an  agreement 
in  writing;*  and  where  a  tenant  holds  lands  under  written  rules, 
but  the  length  of  his  term  is  agreed  on  orally,  the  landlord  need  not 
produce  these  rules  in  an  action  of  trespass  under  a  plea  denying 
his  possession,  because  such  plea  only  renders  it  necessary  for  the 
plaintiif  to  prove  the  extent  of  the  tenant's  term,  which,  having  been 
agreed  to  by  parol,  does  not  depend  upon  the  written  rules. ^  The 
fact  of  partnership  may  also  be  proved  by  parol  evidence  of  the  acts 


1  Doe  V.  Morris,  12  East,  237. 

"^  Gr.  Ev.  I  89,  in  part. 

^  Reid  v.  Batte,  M.  &  M.  413,  per  1x1.  Tenterden;  commented  on  by  Patte- 
son,  J.,  in  Parton  v.  Cole,  6  Jur.  370,  Bail  C.  See  Vincent  v.  Cole,  M.  &  M. 
257,  and  cases  cited  ante,  §  402,  n.  1. 

*  R.  V.  Holy  Trinity,  Hull,  7  B.  &  C.  611;  1  M.  &  R.  444,  S.  C;  Doe  v. 
Harvey,  8  Bing.  239,  242;  1  M.  &  Sc.  374,  S.  C. ;  Spiers  v.  Willison,  4  Cranch, 
398;  Dennett  v.  Crocker,  8  Greenl.  239,  244.  See,  however,  the  observations 
of  Best,  C.  J.,  on  the  case  of  R.  v.  Holy  Trinity,  in  Strother  v.  Barr,  5  Bing. 
158,  159;  see,  also,  Twynam  v  Knowles,  13  Com.  B.,  222. 

*  Hey  V.  Moorhouee,  6  Bing.  N.  C.  52;  8  Scott,  156,  S.  C. 

(3245) 


078  COLLATERAL  WRITINGS  NEED  NOT  BE  PRODUCED.     [pART.  II. 

of  the  parties,  without  producing  the  deed;'  and  the  fact  that  a 
party  has  agreed  to  sell  goods  on  commission  may  be  established  by 
oral  testimony,  though  the  terms  respecting  the  payment  of  the 
commission  have  been  reduced  into  writing.'^ 


§  406.  So  where,  at  the  time  of  letting  some  premises  to  the  §  377 
defendant,  the  plaintiff  had  read  the  terms  from  pencil  minutes, 
and  the  defendant  had  acquiesced  in  these  terms,  but  had  not 
signed  the  minutes;^ — and  where,  upon  a  like  occasion,  a  memo- 
randum of  agreement  was  drawn  up  by  the  landlord's  bailiff,  the 
terms  of  which  were  read  over,  and  assented  to,  by  the  tenant,  who 
agreed  to  bring  a  surety  and  sign  the  agreement  on  a  future  day, 
but  omitted  to  do  so;*  and  where,  in  order  to  avoid  mistakes,  the 
terms  upon  which  a  house  was  let,  were,  at  the  time  of  letting, 
reduced  to  writing  by  the  lessor's  agent,  and  signed  by  the  wife 
of  the  lessee,  in  order  to  bind  him;  but  the  lessee  himself  was 
not  present,  and  did  not  appear  to  have  constituted  the  wife  as 
his  agent,  or  to  have  recognised  her  act,  further  than  by  entering 
upon  and  occupying  the  premises:^ — and  where  landa  were  let  by 
auction,  and  a  written  paper  was  delivered  to  the  bidder  by  the 
auctioneer,  containing  the  terms  of  the  letting,  but  this  paper  was 
never  signed  either  by  the  auctioneer  or  by  the  parties;^ — and 
where,  on  the  occasion  of  hiring  a  servant,  the  master  and  servant 
went  to  the  chief  constable's  clerk,  who  in  their  presence,  and  by 
their  direction,  took  down  in  writing  the  terms  of  the  hiring,  but 
neither  party  signed  the  paper,  nor  did  it   appear  to  have  been 


'  Alderson  r.  Clay,  1  Stark.  R.  AO'^,  per  T.d.  Ellenborough. 

■'  Whitfield  V.  Brand,  10  M.  &  W.  282. 

3  Trewhitt  v.  Lambert,  10  A.  &  E,  470;  3  P.  &  D.  676,  S.  C.  See  Drant 
V.  Brown,  3  B.  &  C.  665;  5  D.  &  R,  582,  S.  C. ;  and  Bethell  v.  Blencowe,  3  M. 
&  Gr.  119,  where  the  court  held  that  written  proposals,  made  pending  a  negotia- 
tion for  a  tenancy,  might  be  admitted  without  a  stamp,  as  proving  one  step  in 
the  evidence  of  the  contract. 

*  Doe  V.  Cartwright,  3  B.  &  A.  326.  See  Hawkins  v.  AVarre.  3  B.  &  C.  690; 
5  D.  &  R.  512,  S.  C. 

*  R.  V.  St.  Martin's,  Leicester,  2  A.  &  E.  210;  4  N.  &  M.  202.  S.  C. 

«  Ramsbottom  v.  Tunbridge,  2  M.  &  Sel.  434.  See  Ramsbottom  v.  Mortley,  2 
M.  &  Sel.  445,  cited  ante,  |  402. 

(3246) 


CHAP.  IV.]    WHEN  PAROL  EVIDENCE  NOT  EXCLUDED  BY  WRITINGS.    379 

read  to  them;' — in  all  these  instances  the  court  held  that  parol 
evidence  was  admissible,  since  the  writings  only  amounted,  either 
to  mere  unaccepted  proposals,  or  to  minutes  capable  of  conveying 
no  definite  information  to  the  court  or  jury,  and  they  could  not, 
by  any  sensible  rule  of  interpretation,  be  construed  as  memoranda, 
which  the  parties  themselves  intended  to  operate  as  fit  evidence  of 
their  several  asrreements. 


§  407.  On  the  same  principle  it  has  frequently  been  held,  that  §  378 
where  the  action  is  not  directly  upon  the  agreement  for  non- 
performance of  its  terms,  but  is  in  tort,  for  its  conversion,  or  de- 
tention, or  negligent  loss,  the  plaintifP  may  give  parol  evidence, 
descriptive  of  its  identity,  without  giving  notice  to  the  defendant 
to  produce  the  document  itself; "  and  even  though  the  defendant 
be  willing  to  produce  it  without  notice,  the  plaintiff  is  not  bound 
to  put  it  in,  but  may  leave  his  adversary  to  do  so,  if  he  think 
fit,  as  part  of  his  case.^  It  has  been  well  observed  that,  "for  the 
purpose  of  identification,  no  distinction  can  be  drawn  between 
written  instruments  and  other  articles; — between  trover  for  a  pro- 
missory note,  and  trover  for  a  waggon  and  horses.* 

§  408.  The  same  rule  prevails  in  criminal  cases;  and,  therefore,  2  379 
if  a  person  be  indicted  for  stealing  a  bill  or  other  written  instru- 
ment, its  identity  may  be  proved  by  parol  evidence,  though  no 
notice  to  produce  it  has  been  served  on  the  prisoner  or  his  agent.^ 
If,  however,  the  indictment  be  for  forgery,  and  the  forged  instru- 
ment be  in  the  hands  of  the  prisoner,  the  pi'osecutor  must  serve 
him  or  his  solicitor  with  a  notice  to  produce  it,  before  he  can 
offer  secondary  evidence  of  its  contents.*^     One  ground  of  difference 

^  R.  V.  Wrangle,  2  A.  &  E.  514.     See,  for  other  instan  ces,  Ingram  v.  Lea,  2 
Camp.  521;  Dalison  r.  Stark,  4  Esp.  163;  Wilson  v.  Bowie,  1  C.  &  P.  8. 

2  Scott  r.  Jones,  4  Taunt.  865;  How  v.  Hall,  14  East,  274;  Bucher  r.  Jarratt, 

3  B.  Sz  P.  143;  Head  r.  Gamble,  10  A.  &  E.  597;  Ro.ss  v.  Bruce,  1  Day,  100; 
The  People  v.  Holbrook,  13  .Johns.  90;  M'Lean  v.  Hertzog,  6  Serg.  &  R.  154. 
These  cases  overrule  Cowan  v.  Abrahams,  1  Esp.  50. 

^  Whitehead  v.  Scott,  1  M.  &  Rob.  2,  per  Ld.  Tenterden. 

*  Jolley  V.  Taylor,  1  Camp.  143,  per  Sir  J.  Mansfield. 

*  R.  V.  Aickles,  1  Lea.  294,  297,  n.  a.,  300,  n.  a. 

«  R.   V.   Haworth,  4  C.  &  P.   254,   per  Parke,  J.;  R.    v.    Fitzsimons,  I.  R., 

4  C.  L.  1. 

(3247) 


380  WHEN  PAROL  EVIDENCE  EXCLUDED  BY  WRITINGS.      [PART  II. 

between  these  two  cases  appears  to  be,  that  in  the  first  it  was 
always  sufficient,  both  in  the  indictment  and  the  proof,  to  describe 
in  very  general  terms  the  instrument  stolen,  whereas  in  the  case 
of  forgery,  the  prosecutor,  under  the  old  law,'  was  often  required 
to  enter  into  a  minute  description  of  the  document  alleged  to  have 
been  forged.^  But  the  main  reason  why  parol  evidence  is  admis- 
sible in  a  case  of  larceny,  though  inadmissible  in  a  case  of  forgery, 
is,  that  a  person  charged  with  stealing  an  instrument  must  know, 
from  the  very  nature  of  the  accusation,  that  he  will  be  called  upon 
to  produce  it,  while  an  indictment  for  forgery  furnishes  no  such 
intimation;  and  it  will  be  presently  seen,  when  the  rules  which 
regulate  the  serving  of  notices  to  produce  are  discussed,'*  that  this 
is  a  material  distinction.  Indeed,  it  may  well  admit  of  a  doubt, 
whether  all  the  cases  cited  in  this  and  the  preceding  section, 
wherein  parol  evidence  has  been  received,  do  not  rest  on  those  rules, 
rather  than  on  the  fact  that  the  contents  of  the  writings  were 
collateral  to  the  questions  in  issue. 

§  409.*  In  the  third  place,  oral  evidence  cannot  be  substituted  §  380 
for  any  writing,  the  existence  or  contents  of  ivhich  are  disputed, 
and  which  is  material  to  the  issue  between  the  parties,  and  is  not 
merely  the  memorandum  of  some  <"tber  fact.  Thus,  a  witness 
cannot  be  asked  whether  certain  resolutions  were  published  in 
the  newspapers,^  neither  can  he  be  questioned  as  to  the  contents 
of  his  account-books:®  but  in  both  these  cases  the  papers  and 
the  books,  as  being  the  best  evidence,  must  be  produced.  So, 
the  primary  proof  of  the  publication  of  an  opera  is  the  production 
of  the  printed  music,  and  the  fact  of  publication  cannot  be  proved 
in  the  first  instance  by  a  witness  who  has  merely  seen  the  opera 
in  print,  or  heard  parts  of  it  played  in  society.'  So,  doubts  have 
been  entertained  as  to  whether  the  contents  of  handbills,  written 
by  dictation  at  a  meeting  of  conspirators,  could  be  proved  by  oral 


'  See,  now,  24  &  25  V.,  c.  98,  |  42,  cited  ante,  ?  291. 
^  See  Bucherf.  Jarratt,  3  B.  &  P.  146,  per  Chanibrc,  J. 
=*  Post,  ?  4.52.  *  Gr.  Ev.  ?  88,  in  part. 

5  R.  V.  O'Connell,  Arm.  &  T.  163.  «  Id.  198.     See  post,  ?  462. 

^  Boosey  v.  Davidson,  13  Q.  B.  257.     But  see  10  Com.    B.   696,  per  Jervis, 
C.  J. 

(3248) 


CHAP.  IV.]      PAROL  ADMISSIONS  SUBSTITUTED  FOR  WRITINGS.  381 

testimony.'  So,  the  fact  of  a  person  being  rated  to  the  relief  of 
the  poor  cannot  be  legally  proved  by  the  collector  stating  that 
such  person's  name  was  on  the  rate,"  but  either  the  rate-book 
itself,'  or  at  least  a  certified  or  examined  extract  from  it,*  must 
be  produced.  So,  a  plaintiff  cannot  be  asked  on  cross  examination 
whether  his  name  is  written  in  a  certain  book  described  by  the 
questioner,  unless  a  satisfactory  reason  be  first  given  for  the  non- 
production  of  the  book  itself.^ 


§  410.  In  stating  that  oral  testimony  cannot  be  substituted  for  ^  381 
any  writing  included  in  either  of  the  three  classes  above  mem- 
tioned,  a  tacit  exception  must  be  made  in  favour  of  the  parol 
admissions  of  a  party,  and  of  his  acts  amounting  to  admissions, 
both  of  which  species  of  evidence  are  always  received  as  primary 
proof  against  himself  and  those  claiming  under  him,  although 
they  relate  to  the  contents  of  a  deed  or  other  instrument,  which 
are  directly  in  issue  in  the  cause.®  "  The  reason,"  says  Mr. 
Baron  Parke,  "  why  such  statements  or  acts  are  admissible,  with- 
out notice  to  produce,  or  accounting  for  the  absence  of  the  written 
instrument,  is,  that  they  are  not  open  to  the  same  objection  which 
belongs  to  parol  evidence  from  other  sources,  where  the  written 
evidence  might  have  been  produced;  for  such  evidence  is  excluded 
from  the  pi'esumption  of  its  untruth,  arising  from  the  very  nature 
of   the   case,  where   better  evidence  is  withheld;  whereas,  what  a 


'    '  E.  V.  Thistlewood,  3.3  How.  St.  Tr.  756—759.     See  post,  ?  417. 
2  Justice  V.  Elstol),  1  Fost.  &  Fin.  256. 

*  E.  V.  CoppuU,  2  Eist,  25,  recognised  by  Pattcson,  J.,  in  E.  v.  Staple 
Fitzpaine,  2  Q.  B.  494.  See  "The  Poor  Eate  Assessment  and  Collection  Act, 
1869,"  32  &  33  v.,  c.  41,  ?  18,  cited  ante,  |  147a. 

*  Justice  V.  Elstob,  1  Fost.  &  Fin.  256. 
»  Darby  v.  Ousel ey,  1  H.  &  N.  1. 

6  Earle  v.  Picken,  5  C.  &  P.  542,  per  Parke,  B.;  Newhall  v.  Holt,  6  M.  & 
W  662,  per  id.;  Slatterie  v.  Pooley,  id.  664,  and  cases  cited  in  n.  a,  669; 
Bethell  v.  Blencowe,  3  M.  &  Gr.  119;  Howard  v.  Smith,  id.  254;  3  Scott, 
N.  E.  574,  S.  C;  E.  v.  Welch,  2  C.  &  Kir.  296;  1  Den.  199,  S.  C;  King 
V.  Cole,  2  Ex.  E.  632;  E.  v.  Basingstoke,  14  Q.  B.  611;  Boulter  v.  Peplow, 
9  Com.  B  501 — 504.  These  cases  overrule  Lord  Tenterden's  decision  in 
Bloxam  v.  Elsie,  1  C.  &  P.  558;  Ey.  &  M.  187,  S.  C.  See  Fox  v.  Waters, 
12  A.  &  E.  43. 

(3249) 


382  PAROL  ADMISSIONS — SLATTERIE  V.  POOLEY.  [I'ART  II. 

party  himself  admits  to  be  true,  may  reasonably  be  presumed  to 
be  so."  ' 


§  411.  It  may  seem  presumption  to  question  the  correctness  §  382 
of  this  reasoning  and  of  the  decisions  founded  upon  it;  but  the 
author  cannot  refrain  from  observing  that,  although  the  admission 
of  a  party  may  fairly  be  presumed  to  be  true,  the  parol  evidence 
by  which  that  admission  is  proved  need  by  no  means  be  so;  and, 
indeed,  such  testimony  is  open  to  even  greater  objection  than 
applies  to  the  ordinary  case,  where  secondary  evidence  is  pro- 
duced, and  the  best  evidence  is  withheld."  When  the  admission 
is  made  in  court,  it  may  very  reasonably  be  allowed  to  render 
needless  the  production  of  the  written  instrument  to  which  it 
refers,  because  the  simple  question  in  such  case  will  be,  is  the 
admission  true?  and  the  rational  presumption  is,  that  a  man  will 
not  tell  a  falsehood,  which  is  against  his  own  interest;  but  when 
a  witness  is  called  to  say  that  he  has  heard  the  opposite  party 
make  a  certain  statement  with  respect  to  the  contents  of  a  written 
instrument,  the  further  question  arises,  was  this  statement  really 
made?  and  to  permit  such  parol  evidence  to  be  equally  admis- 
sible, in  proof  of  the  contents  of  the  instrument,  with  the  produc- 
tion of  the  instrument  itself,  is  to  open  a  vast  field  for  misappre- 
hension, perjury,  and  fraud,  which  would  be  wholly  closed,  if 
the  salutary  rule  of  law,  requiring  that  what  is  in  writing  should 
be  proved  by  the  writing  itself,  were  here,  as  in  other  cases,  to 
prevail.  It  must  be  remembered,  that  Lord  Tenterden,  and  Mr, 
Justice  Maule, — no  mean  authorities, — have  emphatically  expressed 
opinions  in  support  of  the  view  here  suggested;^  while  Mr.  Baron 
Parke  himself  has  declared  that  the  parol  evidence  of  admissions 
may,  in  some  cases,  be  quite  unsatisfactory  to  a  jury,*  and  that 
too  great  weight  ought  never  to  be    attached   to  such    evidence, 


1  Slatterie  v.  Pooley,  6  M.  &  W.  069. 

2  "According  to  Slatterie  v.  Pooley,  what  A.  states  as  to  what  B.,  a  party, 
has  said  respecting  the  contents  of  a  document  which  B.  has  seen,  is  admis- 
sible, whilst  what  A.  states,  respecting  a  document  which  he  himself  has  seen, 
is  not  admissible,— although  in  the  latter  case,  the  chance  of  error  is  single, 
in  the  former  double."     Per  Reporter  in  9  Com.  B.  501.  n.  c. 

3  Bloxam  v.  Flsie,  Ry.  &  M.  188;  Boulter  v.  Peplow,  9  Com.  B.  501. 
*  Slatterie  v.  Pooley,  G  M.  &  W.  669. 

(3250) 


CHAP.  IV.]  PAROL  ADMISSIONS — CONFESSIO  JURIS.  383 

since  it  frequently  happens  that  tlie  witness  not  only  has  mis- 
understood what  the  party  has  said,  but,  by  unintentionally  alter- 
ing a  few  of  the. expressions  really  used,  has  given  to  the  statement 
an  effect  completely  at  variance  with  what  was  intended.' 


§  412.  Since  the  above  observations  were  written,  the  subject  ?  383 
has  undergone  much  discussion  in  Ireland,^  where  the  judges 
have  not  hesitated  to  declare  their  disapproval  of  the  principles 
advanced  in  Slatterie  v.  Pooley.^  "The  doctrine  laid  down  in 
that  case,"  said  Chief  Justice  Pennefather,  "  is  a  most  dangerous 
proposition;  by  it  a  man  might  be  deprived  of  an  estate  of 
10,000Z.  per  annum  derived  from  his  ancestors  through  regular 
family  deeds  and  conveyances,  by  producing  a  witness,  or  by  one 
or  two  conspirators,  who  might  be  got  to  swear  that  they  heard  the 
defendant  say  he  had  conveyed  away  his  interest  therein  by  deed, 
or  had  mortgaged,  or  had  otherwise  encumbered  it;  and  thus,  by 
the  facility  so  given,  the  widest  door  would  be  opened  to  fraud, 
and  a  man  might  be  stripped  of  his  estate  through  this  invita- 
tion to  fraud  and  dishonesty."^  The  case  which  called  forth  these 
remai'ks  was  an  action  for  use  and  occupation.  At  the  trial, 
one  of  the  plaintiff's  witnesses,  after  proving  the  occupation  of 
the  premises  by  the  defendant,  acknowledged  in  cross-examination 
the  existence  of  a  written  agreement;  and  the  court  held,  that 
this  agreement  must  be  produced,  though  the  defendant  had  ad- 
mitted that  he  was  tenant  at  a  particular  rent. 

§  413.  Whether  the  doctrine  propounded  in  Slatterie  ii  Pooley  ^  334 
would  be  held  to  extend  to  records,  as  well  as  to  deeds  and 
ordinary  writings,  and  whether  it  would  embrace  the  case  of  a 
confessio  juris,  as  well  as  that  of  a  confessio  facH,  may  admit  of 
some  doubt.  In  one  case  before  Lord  EUenborough,  the  admis- 
sion of  a  party  that  he  had  been  discharged  under  the  Insolvent 
Debtors   Act,  was  held  insufficient  evidence  of  a  valid  discharge, 


1  Note  to  Earle  v.  Picken,  ,C.  &  P.  542. 

2  Lawless  v.  Queale,  8  Ir.  Law  R.  382.     See,  also,  Ld.   Gosford  ?'.  Robb,  id. 
217;  and  Parsons  v.  Purcell,  12  id.  90.  •■*  6  M.  &  W.  664. 

*  Lawless  v.  Queale,  H  Ir.  Law  R.  .385.     See,  also,  Henman  v.  Lester,  31  L. 
J.,  C.  P.  370,  371,  per  Byles,  J.;  12  Com.  B.,  N.  S.  781,  782,  S.  C. 

(3251) 


384  ORAL  EVIDENCE,  WHEN  ADJIISSIBLE.  [pAKT  II. 

because  the  judicial  document,  on  being  produced,  might  be  found 
irregular  and  void,  and  the  party  might  be  mistaken  ;^  but  on  an 
indictment  for  biga^ny  it  has  been  held  that  the  prisoner's  deli- 
berate declaration,  that  he  had  been  married  in  a  foreign  country, 
rendered  it  unnecessary  to  prove  that  the  marriage  had  been  cele- 
brated according  to  the  laws  of  that  country.^  So,  in  an  action 
for  wages,  an  admission  by  the  plaintiff  that  his  cla,im  had  been 
referred  to  an  arbitrator,  who  had  made  an  award  against  him,  has 
been  held  admissible  evidence  on  behalf  of  the  defendant.* 


§  414.  It  may  be  further  observed,  with  respect  to  this  exception,  §384 
that  a  material  difference  exists  between  proving  by  means  of  an 
admission  the  execution  of  an  instrument  requiring  attestation, 
which  is  produced,  and  proving  the  party's  admission,  that  by  such 
instrument,  which  is  not  produced,  a  certain  act  was  done;  and, 
indeed,  it  still  appears  to  be  the  law, — as  will  hereafter  be  shown,* 
—that,  when  an  instrument,  which  requires  attestation  to  give  it 
validity,^  is  in  court,  and  its  execution  is  to  be  proved  against  a 
hostile  party,  an  admission  on  his  part  of  due  execution,  unless 
made  with  a  view  to  the  trial  of  that  cause,  is,  generally,**  not 
sufficient.  This  rule  is  founded  on  reasons  peculiar  to  the  class  of 
cases  to  which  it  is  applied. 

§  415.'  AVhere  the  writing  does  not  fall  within  either  of  the  §  385 
three  classes  already  described,  no  reason  exists  why  it  should 
exclude  oral  evidence.  If,  therefore,  a  written  communication  be 
accompanied  by  a  verbal  one  to  the  same  effect,  the  latter  may 
be  received  as  independent  evidence,  though  not  to  prove  the  con- 
tents of  the  writing,  nor  as  a  substitute  for  it.**     So,  the  payment 


^  Scott  V.  Clare,  3  Camp.  236.  See,  also,  Summersett  v.  Adamson,  1  Bing, 
73;  Jenner  v.  Joliflfe,  G  Johns.  9;  Welland  Canal  Co.  v.  Hathaway,  8  Wend. 
480. 

^  R.  V.  Newton,  2  IVI.  &  Rob.  503,  per  Wightman  and  Cresswell,  Js. ;  1  C.  & 
Kir.  164,  S.  C,  nom.  R.  v.  Simmonsto.  But  see  R.  v.  Flaherty,  2  C.  &  Kir. 
782;  and  R.  v.  Savage,  13  Cox,  178,  per  Lush,  J. 

3  Murray  v.  Gregory,  5  Ex.  R.  468.  *  See  post,  ?§  1843,  1849. 

5  See  17'&  18  V.-,  c.  125,  ?,  26;  19  &  20  V.,  c.  102,  ^  29,  Ir. 

«  See,  however,  Nagle  v.  Shea,  I.  R.,  9  C.  L.  3S9. 

'  Gr.  Ev.  §  90,  in  part.  ^  See  ante,  ^  400. 

(3252) 


CHAP.    IV.]  ORAL    EVIDENCE,  WHEN    ADMISSIBLE.  385 

of  money  may  be  pi'oved  by  oral  testimony,  though  a  receipt  be 
taken  ; '  a  verbal  demand  of  goods  is  admissible  in  trover,  though  a 
demand  in  writing  was  made  at  the  same  time;"  and  the  admission 
of  a  debt  is  provable  by  oral  testimony,  though  a  written  promise  to 
pay  was  simultaneously  given.^  So,  the  determination  of  an  interest 
in  land,  whether  freehold  or  copyhold,  may  be  proved  without  pro- 
ducing, or  accounting  for  the  non-production  of,  the  title-deeds  or 
court  rolls,  by  merely  showing  that  a  deceased  occupier,  had,  while 
in  possession,  declared  that  bis  interest  in  the  premises  would  expire 
at  his  death.^  For, — as  will  presently  be  seen,^ — all  statements 
by  a  person,  while  in  possession  of  property,  are,  after  his  death, 
in  themselves  primary  evidence,  provided  they  tend  to  cut  down  his 
interest  therein.** 

§  416.  Where,  on  a  preliminary  hearing  of  a  charge,  the  magis-  §  386 
trate's  clerk  takes  down  what  the  witness  says,  but  neither  the 
witness  nor  the  magistrate  signs  the  writing,  nor  does  it  constitute 
part  of  the  depositions  returned,  oral  evidence  of  what  passed  on 
that  occasion  is  equally  admissible  with  the  clerk's  note; '  and  the 
same  rule  will  prevail,  if,  on  the  hearing  of  an  information  for  a 
trespass  in  pursuit  of  game,^  the  clerk  takes  a  note  of  the  charge ; 
because  this  is  not  one  of  those  cases  where  the  magistrate  is  bound 
to  take  down  what  the  witnesses  say,"  So,  in  support  of  an  indict- 
ment for  perjury  committed  in  a  County  Court,  it  is  unnecessary  to 
subpoena  the  judge  to  produce  his  notes,  for  he  is  not  required  by 
law  to  keep  any,  and  the  perjury  may  be  proved  by  any  witness 
who  was  present  at  the  trial. ^°  So,  where  the  proceedings  of  direc- 
tors, commissioners,  public  trustees,  and  the  like,  are  entered  in 


^  Rambert  ?'.  Cohen,  4  Esp.  213 ;  Jacob  t\  Lindsay,  1  East,  460. 

^  Smith  V.  Young,  4  Camp.  439,  per  Ld.  Ellenborough. 

3  Singleton  v.  Barrett,  2  C.  &  J.  368. 

*  Doe  V.  Langfield,  16  M.  &  W.  497.  5  Post,  ^  684,  et  seq. 

«  Doe  V.  Langfield,  16  M.  &  W.  514,  per  Parke,  B. 

^  Jeans  r.  Wheedon,  2  M.  &  Rob.  486,  per  Cresswell,  J.;  R.  v.  Christopher, 
2  C.  «fe  Kir.  994  ;  1  Den.  536 ;  4  Cox,  76,  S.  C. ;  ante,  §  400. 

8  Under  1  &  2  W.  4,  c.  32,  ?  30. 

^  Robinson  v.  Vaughton,  8  C.  &  P.  252,  per  Alderson,  B. 

^^  R.  r.  Morgan,  6  Cox,   107,  per  Martin,   B. ;  Harmer  r.   Bean,  3  C.  &  Kir. 
307,  per  Parke,  B. 

(3253) 


386  ORAL    EVIDENCE.  WHEN    ADMISSIBLE.  [PART   ir. 

books,  the  fact  that  sucli  books  are  rendered  by  statute  admissible 
in  evidence,  does  not  exclude  parol  proof  of  what  has  taken  place  at 
the  respective  meetings.'  Neither  is  it  necessary  to  produce  a 
certificate  of  registration,  in  order  to  prove  that  a  joint  stock  com- 
pany has  been  completely  registered.'  So,  the  fact  of  birth,  l)ap- 
tism,  marriage,''  death  or  burial,  may  be  proved  by  parol  testimony, 
though  a  nan-ative  or  memorandum  of  these  events  may  have  been 
entered  in  registers,  which  the  law  requires  to  be  kept  ;  for  the 
existence  of  contents  of  these  registers  form  no  part  of  the  fact  to 
be  proved,  and  the  entry  is  no  moi-e  than  a  collateral  or  subsequent 
memorial  of  that  fact,  which  may  furnish  a  satisfactory  and  con- 
venient mode  of  pi'oof,  but  cannot  exclude  other  evidence,  though  its 
non-production  may  afford  grounds  for  scrutinising  such  evidence 
•  with  more  than  ordinary  care."* 

§  417.^  On  a  somewhat  similar  ground  it  has  been  held,  that  in  ?  SS'; 
prosecutions  for  political  offences,  such  as  treason,  conspiracy,  and 
sedition,  the  inscriptions  on  flags  and  banners  paraded  in  public, 
and  the  contents  of  resolutions  read  at  a  public  meeting,  may  be 
proved,  as  being  of  the  nature  of  speeches,  by  oral  testimony; ''  and 
where  a  party  was  indicted  for  administering  an  unlawful  oath,  a 
witness  was  permitted  to  give  parol  evidence  of  the  words  used, 
though  he  stated,  his  belief  that  the  accused  read  the  words  from  a 
paper,  which  he  held  in  his  hand  when   he  administered  the  oath, 


1  Miles  r.  Bough,  3  Q.  B.  845,  872;  Inglis  r.  Gt.  North.  Ry.  Co.,1  Macq. 
Sc.  Cas.,  H.  of  L.  112,  118,  119. 

2  Agi-icultural  Cattle  Ins.  Co.  ?'.  Fitzgerald,  16  Q.  B.  432  ;  decided  under 
the  repealed  Act,  7  &  8  V.,  c.  110,  |^  7  &  25.  See,  now,  25  &  26  V.,  c.  89, 
13  Cox,  345,  S.  C. 

•'  Lady  Limerick  v.  Ld.  Limerick,  32  L.  J.,  Pr.  &  Mat.  22;  4  Swab.  & 
Trist.  252,  S.  C. 

*  Evans  v.  Morgan,  2  C.  &  J.  453  ;  R.  v.  Allison,  R.  &  R.  109  ;  Harrison 
V.  Corp.  of  Southampton,  22  L.  J.,  Ch.  722;  R.  v.  Mainwaring,  26  L.  J.,  M. 
C.  10;  Dear.  &  Bell,  132;  7  Cox,  192,  S.  C. ;  Reed  v.  Passer,  Pea.  R.  232; 
St.  Devereux  r.  ]\Iuch  Dew  Church,  1  W.  Bl.  367  ;  Morris  v.  Miller,  id.  632; 
4  Burr.  2067,  S.  C. ;  Birt  r.  Barlow,  1  Doug.  172;  Com.  r.  Norcross,  9  Mass. 
492  ;  Ellis  r.  Ellis,  11  Mass.  92  ;  Owings  v.  Wyant,  1  Har.  &  M'H.  393. 

^  Gr.  Ev.  I  90,  in  part. 

^  R.  V.  Hunt,  3  B.  &  A.  566  ;  Sheridan's  and  Kirwan's  case,  31  How.  St.  Tr. 
673  ;  R.  V.  O'Connell,  Arm.  &  T.  23,5—237.     See  ante.,  §  409,  n.  ^. 

(3254) 


CHAP.  IV.]      BEST  DOCUMENTARY  EVIDENCE  MUST  BE  PRODUCED.      387 

and  no  notice  to  produce  this    paper    had  been    served    on    the 
prisoner.' 

§  418.  The  preceding  observations  have  been  confined  to  cases,  §  388 
where  the  attempt  has  been  made  to  substitute  oral  for  written 
evidence;  but  precisely  the  same  rules  operate  to  the  exclusion  of 
ivritings  tvhich  the  law  considers  as  entitled  to  less  iceight  than 
those  which  might,  and,  consequently,  ought  to  be  forthcoming. 
Thus,  an  original  document  must, — subject  to  some  exceptions 
that  will  be  presently  mentioned,"  — be  produced  at  the  trial,  and 
a  mere  cojjy,  however  accurate,  will  not  in  the  first  instance  be 
admissible.''  If,  then,  it  be  necessary  to  show  the  contents  of  a 
manuscript  which  is  in  the  possession  of  the  opposite  party,  a 
paper,  purporting  to  be  a  printed  copy,  cannot  be  received  in 
evidence,  without  a  notice  to  produce  the  manuscript ;  *  neither 
will  a  duplicate  writing,  taken  from  an  autograph  at  one  impres- 
sion by  means  of  a  copying  machine,  be  regarded  as  an  original, 
but  the  autograph  itself  must  be  produced,  or  its  non -production 
to  be  accounted  for  as  in  ordinary  cases.^  Still,  all  printed  copies 
struck  off  in  one  common  impression,  though  they  constitute  merely 
secondary  evidence  of  the  contents  of  the  paper  from  which  they 
are  taken,  are  considered  as  primary  evidence  of  each  other's  con- 
tents ;  and,  therefore,  when  the  question  was,  whether  a  prisoner 
was  acquainted  with  the  contents  of  certain  placards,  some  copies  of 
which  were  traced  to  his  possession,  a  copy  remaining  with  the 
printer  was  allowed  to  be  read  in  evidence  for  the  prosecution,, 
though  no  notice  had  been  served  upon  the  prisoner  to  produce  the 
copies  which  had  been  delivered  to  him.*^  Again,  on  an  indictment 
for  feloniously  setting  fire  to  a  house,  with  intent  to  defraud  the 
insurers,  the  policy  itself,  being  the  best  evidence  of  the  fact  of 
insurance,    must    be   produced  by  the  prosecutor;    and  recourse- 


1  R.  V.  Moors,  6  East,  421,  n. 

^  Post,  §  428.  3.B.  N.  P.  293,  294, 

*  E.  V.  Watson,  32  How.  St.  Tr.  82—86;  2  Stark.  E.  129,  S.  C. 

^Nodin  V.  Murray,  3  Camp.  228,  per  Ld.  Ellenborough.  In  India,  "an 
impression  of  a  document  made  by  a  copying  machine  shall  be  taken  without 
further  proof  to  be  a  correct  copy."     Act  11  of  1855,  §  35. 

«  E.  V.  Watson,  32  How.  St.  Tr.  82—86;  2  Stark.  E.  129,  S.  C. 

4  LAW  OF  EVID.— V.  II.  (3255) 


388      MEMORIAL  OF  REGISTERED  DEED,  WHEN  ADMISSIBLE.    [pART  II. 

cannot  bo  bad  to  the  books  of  the  insurance  office,  even  though 
the  policy  bo  in  the  defendant's  possession,  unless  notice  to  produce 
it  has  been  duly  served  upon  him.' 

§  419.  The  memorial  of  a  registered  conveyance  is  also  inad-  ?  389 
missible  as  primary  evidence  against  third  persons,  to  prove  the 
contents  of  the  deed;"  although  against  the  party  by  whom  the 
deed  is  registered,  and  those  who  claim  under  him,  it  can  certainly 
be  received  as  secondary,^  if  not  as  primary,*  evidence,  being  con- 
sidered in  the  light  of  an  admission. °  On  one  or  two  occasions, 
the  memorial,  or  even  an  examined  copy  of  the  registry,  has  been 
received  as  secondary  evidence  of  the  contents  of  an  indenture, 
not  only  as  against  parties  to  the  deed,  who  have  had  no  part  in 
registering  it,  but  also  as  against  third  persons;  but,  in  all  these 
cases,  the  evidence  has  been  admitted  under  special  circumstances, 
as  for  instance,  where  parties  have  been  acting  for  a  long  period 
in  obedience  to  the  provisions  of  the  supposed  instrument,  or  where 
the  deed  has  been  recited  or  referred  to  in  other  documents  ad- 
missible in  the  cause. "^  The  enrolment  of  a  lease  granted  by  the 
Crown  is  primary  evidence,  because  the  possessions  of  the  Crown 
cannot  be  alienated  but  by  matter  of  record;  and  the  same  rule 
applies  to  leases  granted  by  the  Duke  of  Cornwall,  on  account  of 
the  identity  of  interest  which  subsists  between  His  Royal  Highness 
and  the  Crown.' 

§  420.  It  may  occasionally  be  a  question  of  some  nicety  to  deter-    5  390 
mine  what  instrument  constitutes  the  primary  evidence  of  a  transac- 


1  R.  V.  Doran,  1  Esp.  127,  per  Ld.  Keuyon,  R.  r.  Kitson,  22  L.  J.,  M.  C. 
118;  Pearce&D.  187,  S.  C;  R.  v.  Gilson,  R.  &  R.  138;  R.  v.  Ellicombe,  5 
C.  &  P.  522,  per  Littledale,  J. ;  1  M.  &  Rob.  260,  S.  C. 

^  Molton  I'.  Harris   2  Esp.  549,  per  Ld.  Kenyon. 

=>  Doe  V.  Clifford,  2  C.  &.  Kir.  448,  452,  per  Alderson  B. ;  D.  of  Devonshire 
V.  Neill,  2  L.  R.,  Ir.  132,  150. 

*  Boulter  v.  Peplow,  9  Com.  B.,  502,  per  Maule,  J.  See  Brown  v.  Armstrong, 
I.  R.,,7  C.  L.  130. 

*  Wollaston  r.  Hakewill,  3  M.  &  Gr.  297;  3  Scott,  N.  R.  593,  S.  C. 

«  See  Sadlier  v.  Biggs,  4  H.  of  L.  Cas.  435;  Biggs  v.  Sadlier,  10  Ir.  Eq. 
R.  522;  Peyton  v.  M'Dermott,  1  Dru.  &  War.  198.  See,  also,  Collins  v. 
Maule,  8  C.  &  P.  502;  Doe  v.  Kilner,  2  C.  &  P.  289. 

"  Rowe  V.  Brenton,  8  B.  &  C.  755 — 758.  For  other  instatices,  see  post, 
§  1650,  et  .seq. 

(3256) 


CHAP.  IV.]     broker's  books — BOUGHT  AND  SOLD  NOTES.       389 

tion.-  Thus,  Avhere  goods  have  been  sold  through  the  medium  of  a 
broker,  it  is  not  yet  distinctly  decided  how  far  the  broker^s  book  is 
admissible  in  proof  of  the  contract.  On  the  one  hand,  it  has 
been  powerfully  urged  by  many  eminent  judges,  that  this  book, 
if  duly  signed  by  the  broker,  furnishes  the  best  evidence  of  the 
agreement,'  but  on  the  other  hand  it  has  been  ruled,  after  much 
consideration,  and  after  consulting  merchants,  that  the  bought  and 
sold  notes,  provided  they  agree,  and  are  signed  so  as  to  satisfy  the 
Statute  of  Frauds,-'  constitute  the  contract,  and,  as  such,  must  be 
produced  in  the  first  instance.^  However  this  particular  point 
may  be  ultimately  determined,  it  seems  to  be  quite  clear,  that  if  no 
notes  have  been  transmitted  to  the  principals,  recourse  may  be  had 
to  the  signed  entry  in  the  book  kept  by  the  broker,*  or,  indeed,  to 
any  other  memorandum  made  by  him  as  agent  for  both  parties, 
which  is  sufficient  to  satisfy  the  statute.^  In  one  case,  where  the 
contract  was  made  through  the  medium  of  a  broker,  but  the  note 
delivei:ed  to  the  vendor  was  actually  signed  by  the  purchaser,  Lord 
Ellenborough  held, — and  it  would  seem  correctly, —  that  this  note 
of  itself  constituted  the  contract,  though  it  differed  materially  from 
the  note  which    was  sent    to    the    purchaser."      "Where,  however, 


'  Sievewright  v.  Archibald,  17  Q.  B.  115,  per  Patteson,  J.,  124,  per  Ld, 
Campbell;  Hej^man  v.  Neale,  2  Camp.  .337,  per  Ld.  Ellenborough;  Grant  v. 
Fletcher,  5  B.  &  C.  436;  8  D.  &  R.  59,  S.  C:  Henderson  r.  Barne^all,  1  Y. 
&  J.  387. 

2  Durrell  v.  Evans,  1  H.  &  C.  174;  and  31  L.  J.,  Ex.  337,  per  Ex.  Ch.,  over- 
ruling .same  case,  30  L.  J.,  Ex.  254;  and  S.  C.  nom.  Darrell  v.  Evans.  6  H.  &  N. 
660.  See  Parton  v.  Crofts,  16  Com.  B.,  N.  S.  11;  33  L.  J.,  C.  P  189,  S.  C.^ 
and  Thompson  v.  Gardiner,  L.  R.  1  C.  P.  D.  777.  In  these  last  two  cases  the 
production  of  the  sold  note  only  -was  held  sufficient  to  satisfy  the  statute. 

»  Goom  T.  Aflalo,  6  B.  &  C.  117;  9  D.  &  R.  148,  S.  C. ;  Thornton  v. 
Kempster,  5  Taunt.  786  :  Thornton  v.  Meux,  AI.  &  M.  43,  per  Al)bott,  C.  J.^ 
Gumming  v.  Roebuck,  Holt,  N.  P.  R.  172:  Hawes  r.  Forster,  1  M.  &  Rob.  368, 
perLd.  Denman;  Townend  v.  Drakeford.  1  C.  &  Kir.  20,  per  id. 

*  Townend  v.  Drakeford,  1  C.  &  Kir.  20;  Pitts  i:  Beckett,  13  ]\I.  &  W.  746, 
per  Parke,  B. ;  Thompson  v.  Gardiner,  L.  R.,  1  C.  P.  D.  777. 

^  Richey  v.  Garvey,  10  Ir.  Law  R.  544.  There  the  memorandum  had  been 
drawn  up  two  or  three  days  after  the  sale,  but  the  court  held  this  fact  to  be 
immaterial,  the  broker's  authority  as  agent  for  the  parties  not  having  been 
revoked. 

^  Rowe  r.  Osiborne,  1  Stark.  R.  140;  recognised  in  Cowie  v.  Remfry,  5  Moo. 
P.  C.  R.  249,  250.  But  see  Moore  r.  Campbell,  10  Ex.  R.  323,  Avhere  the 
vendor  having  signed  a  note  which  differed  from  the  one  sent  to  him  by  the 

(3257) 


390  UROKKIl's  BOOKS — BOUGHT  AND  SOLD  NOTES.  [I'ART  II. 

the  transaction  was  an  ordinary  one  of  bought  and  sold  notes, 
signed  by  the  broker,  which  substantially  differed  from  each  other, 
the  Privy  Council  held  that  no  binding  contract  had  been  effected, 
although  the  purchaser  had,  on  objection  raised  by  the  vendor 
to  a  particular  word  inserted  in  the  sold  note,  struck  out  that  word, 
and  evidenced  his  consent  to  the  erasure  by  affixing  his  initials 
thereto.' 


§  421.  "Whether,  in  the  event  of  a  material  disagreement  between 
the  bought  and  sold  notes,  the  broker's  book  may  be  resorted  to, 
is  a  more  difficult  question.  On  two  occasions.  Lord  Denman 
appears  to  have  considered  that  such  a  course  could  not  be  pur- 
sued;^ and  Lord  Abinger  has  expressed  a  similar  opinion,  though 
he  has  carefully  confined  his  observations  to  a  case  where  it  cannot 
be  shown  that  the  broker's  book  was  known  to  the  parties.^  On 
the  other  hand.  Lord  Wen sley dale  appears  to  have  entertained 
serious  doubts  upon  the  subject,  urging  that  the  broker  would 
scarcely  be  bound  by  his  oath  and  bond  to  enter  the  terms  of  the 
contracts  negotiated  by  him  in  his  books,  and  to  sign  these  books, 
if  the  entries  so  made  by  him  were  not  intended  to  have  a  binding 
effect.*  The  force  of  this  reasoning  is  now,  however,  neutralised, 
since  even  London  brokers  are  no  longer  bound  to  keep  books.* 
Still,  it  is  probable  that  the  doctrine  supported  by  Lord  Wensley- 
dale  will  ultimately  prevail;  and  the  more  so,  as  the  argument 
rejecting  the  broker's  book,  on    the  ground  that  the  parties  are 


purchaser's  broker,  the  court  held  that  the  validity  of  that  note  depended  upon 
the  question  of  fact,  whether  it  was  intended  byl)oth  parties  to  be  the  contract, 
or  whether  the  vendor  only  intended  to  be  bound  by  it,  provided  the  purchaser 
would  sign  a  corresponding  note. 

1  Cowie  V.  Remfry,  5  Moo.  P.  C.  R.  232.  But  see  Heyworth  v.  Knight,  17 
Com.  B.,  N.  S.  298,  310,  311,  per  Willes,  J. 

2  Townend  v.  Drakeford,  1  C.  &  Kir.  20;  Gregson  v.  Ruck,  4  Q.  B.  737,  747. 
In  these  cases  the  question  did  not  directly  arise,  as,  in  the  first,  the  entry  in 
the  broker's  book  was  unsigned,  and  iu  the  last,  the  book  does  not  appear  to 
have  been  tendered  in  evidence  at  all. 

3  Thornton  v.  Charles,  2  M.  &  W.  809. 
*  Id.  804,  807,  808. 

^  33  &  34  v.,  c.  60,  §  2.  Stockbrokers  were  directed  to  keep  books  by  7 
G.  2,  c.  8,  I  9,  made  perpetual  by  10  G.  2,  c.  8;  but  these  Acts  are  now  re- 
pealed by  23  &  24  v.,  c.  28. 

(3258) 


CHAP.  IV.  ]  VARIANCE  BETWEEN  BOUGHT  AND  SOLD  NOTES.  391 

ignorant  of  its  contents,  appears  to*  be  entitled  to  little  weight ; 
for,  first,  there  is  no  necessity  that  they  should  be  ignorant,  as 
either  of  the  principals  may,  if  he  think  fit,  demand  to  see  the 
entry  of  the  contract ;  secondly,  if  the  broker  perform  his  duties 
in  so  negligent  a  manner  as  to  subject  either  of  the  parties  to  loss, 
he  is  responsible  to  the  amount  of  the  injury  sustained;  and,  lastly, 
if  this  argument  were  to  prevail,  it  might  equally  be  applied  to 
almost  every  case,  where  a  contract  is  negotiated  through  the 
medium  of  an  asent. 


§  422.  Where  a  party  wishes  to  enforce  a  contract  made  through  §  392 
a  broker,  it  will  be  sufiicient  for  him  to  produce  the  note  in  his 
possession,  and  to  show  that  the  broker  has  been  employed  in 
the  transaction  by  his  adversary;  and  this  latter,  if  he  seeks  to 
rely  on  any  variance  between  the  bought  and  sold  notes,  must 
produce,  as  his  evidence,  the  one  that  has  been  handed  to 
himself.' 

§  423.  The  amount  of  variance  that  will  render  the  contract  |  393 
nugatory  cannot  be  expressly  defined.  In  one  case,  where  the 
bought  note  spoke  of  a  brokerage  of  one  per  cent.,  and  a  deposit 
of  fifteen  per  cent.,  and  the  sold  note  stated  that  the  brokerage 
was  ten  shillings  per  cent.,  and  omitted  all  mention  of  the  deposit, 
Lord  Denman  ruled  that  the  discrepancy  was  fatal,  though  with 
respect  to  the  brokerage,  one  of  the  jury  interpreted  the  notes  as 
meaning  that  the  broker  should  be  paid  by  the  buyer  one  per  cent., 
and  by  the  seller  half  per  cent.^  In  another  case,  where  Scotch 
iron  was  named  in  the  bought  note,  and  Dunlop's  iron,  which  is 
Scotch  iron,  but  not  the  only  kind  of  Scotch  iron,  was  specified  in 
the  sold  note,  the  contract  was  held  to  be  invalidated  by  the  vari- 
ance f  and  the  court  arrived  at  a  similar  conclusion  in  a  third 
case,  where  the  sole  difference  between  the  bought  and  the  sold 
notes  was,  that  the  one  purported  to  deal  with   "Riga,"  and  the 


^  Hawes  v.  Foster,  1  M.  &  Rob.  368,  per  Ld.  Denman. 

^  Townend  v.  Drakeford,  1  C.  &  Kir.  20.  See  Kempson  v.  Boyle,  34  L.  J., 
Ex.  191,  where  parol  evidence  was  admitted  to  explain  away  an  apparent 
variance  between  the  notes ;  3  H.  &  C.  763,  S.  C. 

*  Sievewright  v.  Archibald,  17  Q.  B.  103. 

(3259) 


392  NOTARIAL  INSTRUMENTS — PROBATES.  [PAKT  II. 

other  with  "Petersburg,"  hemp.'  It  seems,  however,  that  a  mere 
clerical  error,  or  even  a  mistake  in  a  name,  if  productive  of  no  loss, 
will  not  invalidate  the  sale.'"* 


§  424.  With  respect  to  notarial  instruments,  the  general  rule  is  ?  394 
that  a  duplicate  made  out  at  any  time  from  the  original  or  protocol 
in  the  notarial  book,  is  equivalent  to  an  original  drawn  up  at  the 
time  of  the  entry  in  the  book.^  If,  therefore,  a  foreign  bill  of 
exchange  be  protested  for  non-payment,  or  if  it  be  paid  under 
protest  for  the  honour  of  an  indorser,  the  fact  of  the  protest  may 
be  primarihj  established,  not  only  by  producing  a  formal  instru- 
ment of  protest,  extended  by  the  notary  from  his  register  at  the 
date  of  the  actual  protest,  but  by  putting  in  evidence  a  duplicate 
protest,  even  though  it  may  have  been  drawn  up  after  the  com- 
mencement of  the  actioti,  provided  that  the  entries  in  the  notary's 
book  can  be  shown  to  have  been  made  at  the  time  when  the  trans- 
actions occurred.* 

§  425.  The  title  of  a  person  as  executor  or  administrator  might  I  30r> 
have  been  primarily  proved  under  the  old  law  in  any  one  of  the 
following  ways'": — namely,  by  producing  either  the  probate  or 
letters  of  administration,  or  an  exemplification  or  certificate  thereof 
granted  by  the  Ecclesiastical  Court,®  or  the  Book  of  Acts  in  the 
Prerogative  Office  which  directed  the  grant  of  the  probate,'  or 
letters,^  or  an  examined  or  certified  copy  of  such  book,"  or,  if  no 
act  book  or  other  record  were  kept,  even  minutes  of  the  proving  of 
the  will  and  sealing  of  probate,  indorsed  on  the  original  will  by 
the  surrogate   and  registrar  or  deputy  registrar  of  the  Diocesan 


1  Thornton  v.  Kempster,  1  Marsh.  355 ;  5  Taunt.  786,  S.  C. 

2  Mitchell  V.  Lapage,  Holt,  N.  P.  R.  253.  See  Bold  v.  Eayner,  1  M.  &  W.  343. 

*  Geralopulo  v.  Wider,  10  Com.  B.  712,  per  Maule,  J. 

*  Id.  690.  ^  See  post,  |  1589. 

®  Kempton  v.  Cross,  Cas.  temp.  Hard.  108 ;  B.  N.  P.  246  ;  Doe  v.  Gunning, 
7  A.  &  E.  244. 

^  Cox  V.  Allingham,  Jae.  514,  per  Sir  T.  Plumer,  M.  E. 

8  Elden  v.  Keddell,  8  East,  187  ;  De  Ross  Peer.,  2  Coop.  542,  543.' 

»  Davis  V.  Williams,  13  East,  232;  Dorrett  v.  Meux,  23  L.  J.,  C.  P.  221 ;  15 
Com.  B.  142,  S.  C;  14  &  15  V.,  c.  99,  I  14. 

(3260) 


CHAP.  1\-.]  DUPLICATE  ORIGINALS — COUNTERPARTS.  393 

Court.'  Since  the  11th  of  January,  1858,"  either  the  Court  of 
Probate,  or  the  Probate  Division  of  the  High  Court,  has  had  juris- 
diction over  all  matters  testamentary;  but  as  the  statutes  which 
established  those  courts  respectively,  and  the  rules  and  orders 
w^hich  regulate  their  proceedings,  are  alike  almost  wholly  silent 
on  the  subject  of  evidence,  it  is  not  easy  to  determine  with  pre- 
cision how  much  of  the  law  just  referred  to  remains  in  force.  An 
executor  or  administrator,  however,  may  doubtless  still  prove  his 
title,  either  by  producing  the  probate 'or  letters,  or  by  an  exemplifi- 
cation thereof  granted  by  a  registrar  or  district  registrar  of ^  the 
Probate  Division  of  the  High  Court.^ 

§  426.  The  rule,  which  determines  under  what  head  of  evidence  g  396 
deeds  executed  in  duplicate  are  to  be  classed,  appears  to  be  this: 
When  two  or  more  parts  are  sealed  and  delivered  by  each  party, — 
a  practice  which  of  late  years  has  frequently  prevailed, — they  are 
denominated  duplicate  or  triplicate  originals,'^  and  as  such  are  con- 
sidered to  be  primary  evidence.^  When,  however,  each  part  is  exe- 
cuted by  one  party  only,  as  often  occurs  in  the  case  of  leases,  the 
two  instruments  are  called  counterparts,  and  each  is  alternately  the 
best  evidence  against  the  party  sealing  it,  and  those  in  privity  with 
such  party  f'  and  secondary  evidence  of  the  contents  of  the  other 
part.'  Thus,  if  a  landlord  brings  an  action  for  rent,  he  produces 
the  counterpart  executed  by  the  tenant  as  original  evidence,^  or,  in 


1  Doe  V.  Mew,  and  Doe  v.  Gunning,  7  A.  &  E.  240;  2  N.  &  P.  260,  266, 
n.,  S.  C. 

^  When  the  Act  of  20  &  21  V.,  c.  77,  came  into  oi^eration.  See  Gazette  of 
Friday,  4  Dec.  1857. 

^  See  forms  of  exemplifications  appended  to  the  Rules,  &c.,  of  1862,  for 
the  Registrars  of  the  Court  of  Probate  in  respect  of  non-contentious  business, 
Nos.  10-  &  11;  and  similar  forms  appended  to  Rules,  &o.,  for  the  District 
Registrars,  Nos.  11  &  12.  *  2  M.  &  Gr.  518,  b. 

^  See  Colling  v.  Treweek,  6  B.  &  C.  398,  per  Bayley,  J. ;  Brown  v.  Woodman, 
6  C.  &  P.  206,  per  Parke,  J. 

«  Roe  V.  Davis,  7  East,  363;  May.  of  Carlisle  v.  Blamire,  8  East,  487;  Paul 
V.  Meek,  2  Y.  &  J.  116;  Pearce  v.  Morrice,  3  B.  &  Ad.  396;  Burleigh  v.  Stibbs, 
5  T.  R.  465;  Houghton  v.  Koenig,  18  Com.  B.  235. 

'  Munn  V.  Godbold,  3  Bing.  292;  11  Moore,  49  S.  C.  As  secondary  evidence 
it  will  be  admissible,  though  unstamped,  id.  See  33  &  34  V.,  c.  97,  §  93;  and 
ante,  ?  148. 

«  The  law  in  Ireland  is  now  regulated  by  §  23  of  the  Act  23  &  24  V.,  c.  154,' 

(3261) 


394  COUNTERPARTS  OF  OLD  LEASES.  [PART  II. 

the  event  of  its  loss,  he  may  have  recourse,  either  to  the  part  sealed 
by  himself,  or  to  any  other  species  of  secondary  proof;'  but  if  the 
tenant  is  the  person  aggrieved,  he  must  rely  on  the  part  delivered 
by  the  landlord,  and  that  executed  by  himself  will  only  be  con- 
sidered as  secondary  evidence.  With  respect  to  the  stamp,  the 
counterpart  sealed  by  the  lessor  is  usually  deemed  the  original; 
but  that  which  is  sealed  by  the  lessee  may  be  described  in  pleading 
as  the  "indenture,"  though  stamped  as  a  counterpart,  provided  the 
action  be  brought  against  the  lessee."  Where  any  discrepancy  is 
found  to  exist  between  a  lease  and  its  counterpart,  the  law  will 
presume  that  the  lease  is  correct,  unless  it  be  clear  that  the  mistake 
is  in  that  instrument.^ 


§  427.  On  one  or  two  occasions,  where  it  was  necessary  to  show 
that  the  plaintiff's  ancestor  had  exercised  acts  of  ownership  over 
the  property  in  question,  counterparts  of  leases  older  than  the 
period  of  living  memory,  and  found  in  the  ancestor's  muniment 
room,  have  been  admitted  in  evidence  even  against  strangers, 
though  they  were  executed  by  no  one  but  the  persons  named  as 
lessees,  who  were  not  shown  to  have  actually  held  under  them, 
and  though  no  excuse  was  given  for  not  producing  the  original 
leases  sealed  by  the   ancestor.*     It  is  difficult  to  reconcile  these 


which  enacts,  that  "in  all  actions,  suits,  and  proceedings,  proof  by  or  on  behalf 
of  any  landlord  of  the  perfection  of  the  counterpart  of  any  lease  shall  be 
equivalant  to  proof  of  the  perfection  of  the  original  lease;  and  in  case  it  shall 
appear  that  no  counterpart  existed,  or  that  the  counterpart  has  been  lost, 
destroyed,  or  mislaid,  proof  of  a  copy  of  the  original  lease  or  counterpart,  as 
the  case  may  be,  shall  be  sufficient  evidence  of  the  contents  of  the  lease,  as 
against  the  lessee,  or  any  person  claiming  from  or  under  him." 

'  Doe  V.  Ross,  7  M.  &  W.  102;  Hall  v.  Ball,  3  M.  &  Gr.  242;  3  Scott,  N.  R. 
577,  S.  C.  2  Pearce  v.  Morrice,  3  B.  &  Ad.  396. 

^Burchell  v.  Clark,  L.  R.,  2  C.  P.  D.  88;  46  L.  J.,  C.  P.  115,  overruling 
S.  C,  L.  R.,  1  C.  P.  D.  602. 

*  Doe  V.  Pulman,  3  Q.  B.  622;  D.  of  Bedford  v.  Lopes,  cited  id.  623,  as 
decided  by  Ld.  Denman;  Bristow  v.  Cormican,  3  App.  Cas.  668,  per  Ld. 
Blackburn,  in  H.  L.  (I.);  Gov.  of  Magdalen  Hospital  v.  Knott,  47  L.  J.,  Ch. 
726;  L.  R.,  8  Cb.  D.  709,  S.  C,  per  Ct.  of  App.;  Clarkson  v.  Woodhouse,  5 
T.  R.  412,  n.  a;  3  Doug.  189,  S.  C.  In  this  last  case,  the  distinction  between 
counterparts  and  leases  does  not  appear  to  have  been  much  discussed,  if  taken 
at  all. 

(3262) 


CHAP,  IV.]         COUNTERPARTS  OF  OLD  LEASES.  395 

decisions  with  strict  principle,  since  the  counterparts  amounted, 
in  fact,  to  no  more  than  admissions  by  third  parties  that  the  an- 
cestor was  seised;  but  the  judges  appear  to  have  relaxed  the  rule, 
in  consequence  of  the  acknowledged  difficulty  of  tracing  acts  of 
ownership  after  the  lapse  of  many  years;  and  looking  at  the  ques- 
tion in  this  light,  few  persons  will  probably  feel  inclined  to  quarrel 
with  the  doctrine  as  now  established. 


(3263) 


396        .  SECONDARY  EVIDENCE,  WHEN  ADMISSIBLE.  [PAET  II. 


CHAPTEB  V. 

SECONDAEY  EVIDENCE." 

§  428.  In  the  last  chapter  the  rule  was  discussed  which  requires  2  393 
the  production  of  the  best  attainable  evidence,  and  an  attempt  was 
made  to  illustrate  by  examples  the  distinction  between  primary 
and  secondary  modes  of  proof.  It  remains  to  be  seen  upon  what 
occasions  secondarij  evidence  will  be  received;  and  the  first  general 
rule  on  this  subject  is,  that  such  evidence  is  inadmissible,  until  it  he 
shown  that  the  j^yoductioii  of  j^fitnary  evidence  is  out  of  the  party's 
powei:  It  will  be  convenient  to  discuss  this  rule,  and  the  excep- 
tions to  it,  as  they  apply,  first,  to  documentary  evidenfce,  and,  next, 
to  oral  testimony;  and  with  respect  to  documents,  it  will  be  found 
that  proof  of  their  contents  may  be  established  by  secondary  evi- 
dence, first,  when  the  original  writing  is  destroyed  or  lost; 
secondly,  when  its  production  is  physically  impossible,  or  at  least 
highly  inconvenient;  thirdly,  when  the  document  is  in  the  posses- 
sion of  the  adverse  party,  who  refuses,  after  notice,  and  in  some 
cases  without  notice,  to  produce  it;  fourthly,  when  it  is  in  the 
hands  of  a  third  party,  who  is  not  compellable  by  law  to  produce  it, 
and  who,  being  called  as  a  witness  with  a  subpoena  duces  tecum, 
relies  upon  his  right  to  withhold  it;  fifthly,  when  the  law  raises  a 
strong  presumption  in  favour  of  the  existence  of  the  document; 
sixthly,  when  the  papers  are  voluminous,  and  it  is  only  necessary 
to  prove  their  general  results;  and  lastly,  when  the  question  arises 
upon  the  examination  of  a  witness  on  the  voire  dire. 

§  429.'  First,  if  the  instrument  he  destroyed  or  lost,  the  party    ^  399 
seeking  to  give  secondary  evidence  of  its  contents  must  give  some 
evidence  that  the    original   once   existed,^   and  must  then   either 


1  Gr.  Ev.  I  558,  in  part. 

2  Doe  V.  Wittcomb,  6  Ex.  K.  601,  605,  606,  per  Ld.  Campbell;  S.  C.  in  Dom. 
Proc,  4  H.  of  L.  Cas.  431,  per  Alderson,  B. 

(3264) 


CHAP,  v.]  WHEN  INSTRUMENT  IS  DESTROYED  OR  LOST  397 

prove  its  destruction  positively,  or  at  least  presumptively,  as  by 
showing  that  it  has  been  thrown  aside  as  useless,'  or  he  must 
establish  its  loss,  by  proof  that  a  search  has  been  unsuccessfully 
made  for  it,  in  the  place  or  places  where  it  was  most  likely  to  be 
found.  "What  degree  of  diligence  is  necessary  in  the  search  cannot 
easily  be  defined,  as  each  case  must  depend  much  on  its  own 
peculiar  circumstances;^  but  the  party  is  generally  expected  to 
show,  that  he  has,  in  good  faith,  exhausted  in  a  reasonable  degree 
all  the  sources  of  information  and  -means  of  discovery,  which  the 
natm-e  of  the  case  would  naturally  suggest,  and  which  were  acces- 
sible to  him.^  As  the  object  of  the  proof  is  merely  to  establish  a 
reasonable  presumption  of  the  loss  of  the  instrument,  and  as  this 
is  a  preliminary  inquiry  addressed  to  the  discretion  of  the  judge,* — 
the  party  offering  secondary  evidence  need  not  on  ordinary  occa- 
sions have  made  a  search  for  the  original  document,  as  for  stolen 
goods,  nor  be  in  a  position  to  negative  every  possibility  of  its 
having  been  kept  back.^  If  the  document  be  important,  and  such 
as  the  owner  may  have  an  interest  in  keeping,  or  if  any  reason  exist 
for  suspecting  that  it  has  been  fraudulently  withheld,  a  very  strict 
examination  will  properly  be  required;  but  if  the  paper  be  supposed 
to  be  of  little  or  no  value,  a  very  slight  degree  of  diligence  will  be 
demanded,  as  it  will  be  aided  by  the  presumption  of  destruction  or 
loss,  which  that  circumstance  afPords.^ 


§  430.  When  the  document  belongs  to  the  personal  custody  of    ^  400 
a  particular  individual,  or   is  proved,  or  may  be  presumed,  to  be 


1  R.  V.  Johnson,  7  East,  66;  29  How.  St.  Tr.  437—440,  S.  C. 

2  Brewster  v.  Sewell,  3  B.  &  A.  303,  per  Best,  J. ;  Gully  v.  Bp.  of  Exeter, 
4  Bing.  298.  See  Pardoe  v.  Price,  13  M.  &  W.  267,  R.  v.  Gordon,  2.5  L.  J., 
M.  C.  19;  Pearce  &  D.,  586,  S.  C. 

3  R.  V.  Saffron  Hill,  22  L.  J.,  M.  C.  22;  1  E.  «&  B.  93,  S.  C.  See  Moriarty 
V.  Grey,  12  Ir.  Law  R.,  N.  S.  129. 

*  Ante,  ^  23. 

^  M'Gahey  v.  Alston,  2  M.  &  W.  214,  per  Alderson,  B.,  recognised  per 
Wigram,  V.-C,  in  Hart  v.  Hart,  1  Hare,  9. 

«  Gathccole  v.  Miall,  15  M.  &  W.  319,  322,  329,  330,  per  Pollock,  C.  B.; 
335,  336,  per  Alderson,  B. ;  Brewster  v.  Sewell,  3  B.  &  A.  299,  300,  .303;  Ken- 
sington V.  Inglis,  8  East,  278;  R.  v.  East  Fairley,  6  D.  &  R.  153,  per  Bayley,  J., 
Freeman  v.  Arkell,  2  B.  &  C.  494;  3  D.  &  R.  669,  S.  C. 

(3265) 


398  SEARCH  FOR  LOST  INSTRUMENT.  [PART  II. 

in  his  possession,  he  must  in  general  be  served  with  a  subpoena 
duces  tecum,  and  be  sworn  to  account  for  it;'  since,  so  long  as  he 
is  capable  of  being  called  as  a  witness,  his  declarations  respecting 
it  will  in  strictness  be  inadmissible,"  and  even  after  his  death,  this 
species  of  evidence,  though  admissible  as  tending  to  prove  the 
diligence  and  extent  of  the  search,  must  be  received  with  great 
caution.^  Still,  on  one  occasion,  where  an  apprentice  shortly  before 
his  death  had  stated  that  his  indenture  had  been  given  up  to  him 
after  the  expiration  of  the  apprenticeship,  and  that  he  had  burnt  it, 
secondary  evidence  of  its  contents  was  received  without  any  search 
having  been  made  for  it,  as  proof  was  given  that  the  deed  had  not 
been  executed  in  duplicate,  that  the  master  was  dead,  and  that  his 
executrix  had  declared  that  she  knew  nothing  about  the  instru- 
ment/ This  decision  appears  to  have  proceeded  on  the  somewhat 
dubious  ground,  that  if  the  statement  of  the  apprentice  was  inad- 
missible, the  indenture  was  not  traced  into  his  hands,  and  as  the 
term  of  service  had  expired,  no  particular  reason  could  be  assigned 
why  it  should  be  in  his  custody,  while,  if  the  statement  was  re- 
ceivable to  show  a  possession  of  the  deed  by  him,  it  further  showed 
that  search  for  it  was  unnecessary/  The  second  branch  of  this 
dilemma  is  unanswerable,  but  the  first  is  open  to  much  doubt;  for 
even  if  the  fact  of  the  deed  not  being  traced  into  the  hands  of  the 
apprentice,  could  preclude  the  necessity  of  searching  in  that 
quarter,*^  it  could  not  discharge  the  parties  of  laches,  in  having 
neither  called  the  personal  representatives  of  the  master,  nor  even 
examined  his  papers.     Perhaps,  however,  the  case  may  best  be  sup- 


1  See  R.  V.  Saffron  Hill,  22  L.  J.,  M.  C.  22;  1  E.  &  B.  93,  S.  C. 

2  R.  V.  Denio,  7  B.  &  C.  620;  R.  r.  Castleton,  6  T.  R.  236;  Williams  v. 
Younghusband,  1  Stark.  R.  139;  Walker  v.  Lady  Beauchamp,  6  C.  &  P.  552, 
per  Alderson,  B. 

*  R.  V.  Rawden,  2  A.  &  E.  158  per  Ld.  Denman. 

*  R.  V.  Morton,  4  M.  «fe  Sel.  48.  See  R.  v.  Fordingbridge,  27  L.  J.,  M.  C. 
290;  E.  B.  &  E.  678,  S.  C. 

*  Per  Ld.  Ellenborough,  in  4  M.  &  Sel.  50;  explained  by  Bayley,  J.,  in  R. 
V.  Denio,  7  j;.  &  C.  622.  See  Richards  v.  Lewis,  11  Com.  B.  1054.  In  City 
of  Bristol  V.  Wait,  6  C.  &  P.  591,  Alderson,  B.,  held,  that,  in  order  to  let  in 
secondary  evidence  of  the  appointment  of  one  of  the  defendants  as  overseer, 
it  was  sufficient  to  show  that  a  witness  had  asked  him  for  his  appointment, 
when  he  stated  that  he  had  lost  it,  whereupon  no  search  was  made. 

«  See  post,  g  432,  n.  *. 

(3266) 


CHAP.  V.J         SEARCH  FOR  LOST  INSTRUMENT.  399 

ported,  by  considering  that  the  evidence  was  admitted  for  the  mere 
purpose  of  satisfying  the  conscience  of  the  judge  on  a  preliminary 
inquiry;  and  that,  consequently,  a  looser  rule  was  allowed  to  prevail 
than  would  have  been  applicable  to  the  proof  of  the  material  facts.* 
Indeed,  this  distinction  between  evidence  addressed  to  the  judge 
and  that  submitted  to  the  jury,  has  been  adopted  by  the  Court  of 
Queen's  Bench,  which  has  gone  the  length  of  holding,  that,  in 
order  to  show  that  search  has  been  made  for  a  document,  so  as  to 
let  in  secondary  proof  of  its  contents,  hearsay  evidence  of  the 
answers  given  by  persons  who  were  likely  to  have  it  in  their  custody 
ought  to  be  received.^ 


§  431.  If  the  instrument  ought  to  have  been  deposited  in  a  §  401 
public  office,  or  other  particular  place,  it  will  generally  be  deemed 
sufficient  to  have  searched  that  place,  without  calling  the  party 
whose  duty  it  was  to  have  put  it  there,  or  any  other  person  who 
may  have  had  access  to  it.  Thus,  where  it  appeared  that  a  parish 
indenture  of  apprenticeship  had  been  given  to  a  person  since  dead 
to  take  to  the  overseers,  and  a  fruitless  search  was  made  for  it  in 
the  parish  chest,  which  was  the  proper  repository  for  such  instru- 
ments, secondary  evidence  was  admitted,  though  none  of  the 
overseers  were  called,  and  no  inquiry  was  made  of  the  personal 
representative  of  the  party,  who  ought  to  have  delivered  it  to  the 
parish  officers.  "^  So,  where  it  was  the  duty  of  a  paying  clerk  of 
a  parish  to  deposit  a  certain  cancelled  cheque  in  a  room  of  the 
workhouse,  an  application  to  the  successor  of  this  clerk  for  an 
inspection  of  the  cheques  in  the  room,  and  an  ineffectual  examina- 
tion of  several  bundles,  which  were  handed  to  the  party  searching 
by  the  successor,  was  deemed  a  sufficient  search  to  let  in  secondary 
evidence,  though  no  notice  to  produce  had  been  served  on  the 
first  clerk,  he  being  the  defendant  in  the  cause,  and  though  the 
person  who  succeeded  him  in  the  office  was  not  called.*     Again, 


^  R.  V.  Kenilworth,  2  Sess.  Cas.  72,  per  Coleridge,  J. ;  7  Q.  B.  652,  S.  C. 

=>  R.  V.  Braintree,  28  L.  J.,  M.  C.  1;  1  E.  &  E.  51,  S.  C;  R.  v.  Kenilworth, 
2  Sess.  Cas.  66;  7  Q.  B.  642,  S.  C;  Smith  v.  Smith,  I.  R.,  10  Eq.  273. 

'  R.  V.  Stourbridge,  8  B.  &  C.  96;  2  M.  &  R.  43,  S.  C.  See  Minshall  v. 
Lloyd,  2  M.  &  W.  450.  *  M'Gahey  v.  Alston,  2  M.  &  W.  206,  212. 

(3267) 


400  SEARCH  FOR  LOST  WRITINGS — PROPER  CUSTODT.         [pART  11. 

secondary  evidence  of  the  contents  of  a  warrant,  issued  by  the 
defendant,  has  been  received,  on  proof  by  the  high  constable,  who 
levied  under  it,  that  he  had  deposited  it  in  his  office,  and  had 
sought  for  it  there  in  vain,  though  he  added  that  the  town-clerk 
had  access  to  the  office,  and  it  was  objected  that  the  defendant 
should  have  been  served  with  a  notice  to  produce  the  warrant,  and 
the  town-clerk  with  a  subpoena  duces  tecum.' 


§  432.  It  may  often  be  difficult  to  ascertain  what  is  the  proper  I  402 
custody  of  an  instrument,"  and  on  these  occasions  it  will  be  always 
expedient,  and  sometimes  necessary,  to  search  several  places. 
Thus,  where  a  marriage  settlement,  after  providing  a  portion  for 
younger  children,  and  vesting  a  legal  term  in  trustees  to  secure 
it,  reserved  an  ultimate  remainder  to  the  settlor's  heir,  it  was 
held,  that  a  search  among  the  papers  of  the  surviving  younger 
child  was  insufficient  to  let  in  secondary  evidence  of  its  contents, 
and  that  the  papers  of  the  surviving  trustees,  and  of  the  heir, 
should  also  have  been  examined.^  Again,  an  expired  indenture 
of  apprenticeship  remains  sometimes  with  the  master,  sometimes, 
with  the  apprentice;  but  as  the  apprentice  appears  to  have  the 
greatest  interest  in  its  preservation,*  stricter  inquiry  should  be 
made  of  him  than  of  the  master,  though  in  the  absence  of  posi- 
tive proof  respecting  the  possession,  caution  would  suggest,  what 
strict  law  might  not  require,^  a  search  among  the  papers  of  both. 
The  lessor  and  the  lessee  appear  to  be  equally  entitled  to  the 
custody  of  an  expired  lease;  for,  whether  the  term  has  come  to 
an  end  by  efflux  of  time  or  by  forfeiture,  the  lessee,  for  a  time  at 
least,  will  have  a  right  to  keep  the  deed,  since  he  may  have  occa- 
sion to  use  it  in  an  action  of  covenant  against  the  lessor;  but, 
after  a  considerable  interval,  it  will  frequently  be  found  in  the 
landlord's  possession,  as  constituting  one  of  the  muniments  of  his 
title.®     Under  these  circumstances,   prudence  dictates   an   applica- 


1  Fernley  v.  Worthington,  1  M.  &  Gr.  491. 
^  As  to  this  see  post,  §§  659 — 6fi4. 

»  Cruise   v.   Clancv,  6   Ir.    Eq.    II.    552,    556,    per  Sngden,   C;  Eichavfls  v. 
Lewis,  11  Com.  B.  1035.  '  See  Hall  v.  Ball,  3  M.  &  Gr.  247. 

*  R.  V.  Hinckley.  32  L.  J.,  M.  C.  158;  3  B.  &  S.  885,  S.  C. 
«  Hall  I'.  Ball,  3M.  &  Gr.   242,  253;  3  Scott,  N.  R.   577,  S.   C;  Plaxton  v. 

(3268) 


CHAP,  v.]  SEARCH  FOR  LOST  WRITINGS.  401 

tion  to  both  parties,  whenever  it  may  be  necessary  to  prove  the 
loss  of  such  an  instrument,  though  it  has  never  been  expressly 
decided  that  a  search  among  the  muniments  of  the  lessor  alone 
would  not  let  in  secondary  evidence  ;  and  Mr.  Justice  Bayley,  on 
one  occasion,  seems  to  have  thought  that  an  examination  of  the 
lessee's  papers  would  not  be  absolutely  necessary.^ 

§  433.  The  legal  custody  of  a  document  appointing  an  overseer  §  403 
is  in  that  officer,  he  being  the  person  most  interested  in  it,  and 
recjuiring  its  production  as  a  sanction  for  those  acts  which  he  may 
be  called  upon  to  do  under  its  authority.  In  the  absence,  therefore, 
of  proof  that  the  parish  officers  have  the  actual  custody  of  such  an 
instrument,  it  will  not  suffice  to  give  them  notice  to  produce  it,  but 
before  secondary  evidence  can  be  received  it  will  be  necessary  to  call 
the  overseer  himself."  In  a  case  before  Vice- Chancellor  Wigram 
it  appeared  that  a  solicitor,  who  had  prepared  an  agreement  between 
the  plaintiff  and  defendant,  had  sent  it  after  execution  to  the  de- 
fendant by  his  clerk.  This  clerk  was  not  called,  having  quitted  the 
service  of  the  solicitor  a  long  time  back  ;  but  the  defendant's  clerk 
stated  that  he  had  searched  for  the  deed  in  his  counting-house, 
where  the  transactions  to  which  it  referred  were  all  carried  on,  and 
where  books  containing  entries  relating  to  these  transactions  were 
kept.  His  Honour,  on  this  state  of  facts,  expressed  no  opinion  as 
to  the  effect  of  the  absence  of  the  solicitor's  clerk,  but  referred  the 
case  back  to  the  Master,  in  order  that  a  further  search  might  be 
made  at  the  defendant's  private  residence,  since  it  did  not  appear 
that  his  clerk,  who  had  been  actively  concerned  in  the  transactions 
in  question,  had  ever  seen  the  deed  at  the  counting-house.^ 


Dare  10  B.  &  C.  77  ;  5  M.  &  R.  1,  S.  C,  El  worthy  v.  Sandford,  34  L.  J.,  Ex. 
42  ;  3  H.  &  C.  330,  S.  C. ;  R.  v.  North  Redburn,  Cald.  452,  per  Buller,  J. ; 
Doe.  V.  Keeling,  11  Q.  B.  884. 

^  Brewster  v.  Sewell,  3  B.  &  A.  301,  302  ;  Hall  v.  Ball,  3  M.  &  Gr.  247  ;  per 
Erskine,  J. 

■^  R.  V.  Stoke  Golding,  1  B.  &  A.  173,  176. 

'  Hart  V.  Hart,  1  Hare,  1.  In  Bligh  v.  Wellesley,  2  C.  &  P.  400,  a  witness 
stated  that  he  had  in  vain  searched  for  some  papers  in  a  box,  in  which  he 
thought  he  had  put  them,  but  that  he  still  fancied  they  were  somewhere  in 
his  possession,  though  he  had  not  looked  elsewhere  for  them.  Held  insuffi- 
cient, per  Best,  C.  J. 

(3269) 


402  SEARCH    FOR   LOST    WRITINGS.  [PAET   II. 

§  434.  If  the  party  entitled  to  the  custody  of  a  document  be  |  404 
dead,  inquiries  should  generally  be  made  of  his  personal  repre- 
sentatives, and  if  the  document  relate  to  real  estate,  of  the  heir-at- 
law  also  ;  but  these  steps  will  not  be  necessary,  should  it  appear  that 
another  party  is  in  possession  of  the  papers  of  the  deceased.  Where, 
therefore,  the  master  of  an  apprentice,  being  possessed  of  the  in- 
denture, failed,  and  an  attorney  took  the  management  of  the  afFairs, 
and  the  custody  of  his  papers,  a  search  among  these  papers  by  the 
attorney,  after  the  master's  death,  -wias  held  sufficient  to  let  in 
secondary  evidence  of  the  deed  of  apprenticeship,  though  no  in- 
quiries had  been  made  of  the  master's  widow.' 

§  435.  The  law  does  not  require  that  the  search  should  have  been  I  405 
recent,  or  made  for  the  purposes  of  the  cause ;  and  therefore,  where 
it  was  made  amongst  the  proper  papers  three  years  before  the  trial, 
this  was  held  sufficient;  though  it  certainly  would  have  been  more 
satisfactory  had  the  papers  been  again  examined."  If  the  instru- 
ment were  executed  in  duplicate,  or  triplicate,  &c.,  the  loss  of  all 
the  parts  must  be  proved,  in  order  to  let  in  secondary  evidence  of 
the  contents  ;  ^  and,  in  all  cases,  before  such  evidence  will  be  ad- 
missible, it  must  be  shown  that  the  original  instrument  was  duly  exe- 
cuted, and  was  otherwise  genuine.*  If  the  instrument  were  of  such 
a  nature  as  to  have  required  attestation,^  the  attesting  witness  must, 
if  known,  be  called,  or  in  the  event  of  his  death,  his  handwriting 
must  be  proved,  precisely  in  the  same  manner  as  if  the  deed  itself 
had  been  produced  ;  though,  if  it  cannot  be  discovered  who  the 
attesting  witness  was,  this  strictness  of  proof  will,  from  necessity, 
be  waived.  In  the  absence  of  evidence  to  the  contrary,  the  court 
will  presume  that  the  instrument  was  duly  stamped.*^ 


'  R.  V.  PicMlehinton,  3  B.  &  Ad.  4G0. 

2  Fitz  V.  Rabbits,  2  M.  &  Rob.  00. 

•^  R.  V.  Castleton,  6  T.  R.  236  ;  B.  N.  P.  254  ;  Alivon  v.  Furnival,  1  C.  M. 
&  R.  292.     See  ante,  ?  391. 

*  Goodier  v.  Lake,  1  Atk.  446  ;  R.  v.  Culpepper,  Skin.  673  ;  Doe  v.  White- 
foot,  8  C.  &  P.  270  ;  Jackson  v.  Frier,  16  Johns.  196 ;  Kimball  v.  Morrell,  4 
Greenl.  368. 

=  See  17  &  18  v.,  c.  125,  ?  26  ;  and  19  &  20  V.,  c.  102,  |  29,  Ir. 

«  Ante,  §  148. 

(3270) 


CHAP,  v.]     PROBATE  OF  LOST  WILL — ACTION  ON  LOST  WILL.  403 

§  436.  The  question  has  often  been  mooted  in  the  Court  of  §  406 
Probate  as  to  how  far  the  judge  is  authorised  to  grant  probate, 
where  the  will  itself  has,  after  the  death  of  the  testator,  been  irre- 
trievably lost  or  destroyed;  and  the  decisions  go  thus  far,  that,  if 
the  substance  of  the  will  can  be  distinctly  ascertained,  either  by  the 
original  instructions,  or  by  a  copy  of  the  will,  or  even  by  the  recol- 
lection of  witnesses  who  have  heard  it  read,  probate  may  be  granted 
of  a  copy  embodying  such  substance.'  On  one  remarkable  occasion 
the  contents,  or  rather,  a  large  portion  of  the  contents,  of  a  lost 
will,  were  allowed  to  be  proved  by  the  testimony  of  a  single  in- 
terested witness,  whose  veracity  and  competency  were  unimpeached; 
and  in  that  case  probate  was -granted  to  the  extent  of  the  proof. '^ 
In  all  cases,  however,  of  this  nature,  it  is  obviously  necessary  that 
the  jurisdiction  of  the  court  should  be  exercised  with  the  greatest 
possible  caution;  and  the  judge  will  scarcely  feel  justitied  in  acting 
on  the  evidence,  unless  it  be  of  the  most  cogent  and  irrefragable 
character,  not  only  free  from  suspicion  in  its  sources,  but  exact  and 
certain  in  its  conclusions.^ 


§  437.  Notwithstanding  the  rule,  which  in  general  enables  parties  §  407; 
to  prove,  by  secondary  evidence,  the  contents  of  documents  lost  or 
destroyed,  on  some  occasions  it  was  necessary,  prior  to  the  year 
1854,  to  produce^  the  written  instruments  themselves.  Thus,  no 
action  at  law  could  be  sustained  on  a  lost  bill  of  exchange,  promis- 
sory-note, or  cheque,  or  on  the  respective  considerations,  provided 
the  instrument  had  been  originally  drawn  payable  to  order,  or 
bearer,  and  provided  the  fact  of  the  loss  had  been  specially  pleaded."* 

1  Whavram  v.  Wharram,  33  L.  J.,  Pr.  &  Mat.  75;  3  Swab.  &  Trist.  301,  S.  C; 
Podmoret'.  Whatton,  33  L.  J.,  Pr.  &  Mat.  143;  3  Swab.  &  Trist.  449,  S.  C; 
Moore  v.  Whiteliouse,  34  L.  J.,  Pr.  &  Mat.  31;  In  re  Body,  id.  55;  In  re  Bar- 
ber, 36  id.  19;  Wood  v.  Wood,  id.  34;  Finch  v.  Finch,  id.  78;  1  Law  Rep.,  P. 
&  D.  371,  S.  C;  Burls  v.  Burls,  36  L.  J.,  Pr.  &  Mat.  125;  1  Law  Rep.,  P.  &  D. 
472,  S.  C;  In  re  Callan,  I.  R.,  9  Eq.  484;  Mahood  v.  Mahood,  I.  R.,  8  Eq.  359. 
See  po.st,  §  550. 

2  Sugden  v.  Ld.  St.  Leonards,  L.  R.,  1  P.  D.  154:  45  L.  J.,  P.  D.  &  A.  1  & 
49,  S.  C.  See  also  Gouldstone  v.  Woodward,  29  Oct.,  1884,  in  Pr.  D.,  per  Butt, 
J.     Sed.  qu.  ^  Cases  in  last  note  but  one. 

*  Ramuz  i'.  Crowe,  1  Ex  R.  167;  Clay  v.  Crowe,  8  Ex.  R.  295;  Crowe  v.  Clay, 
9  Ex.  R.  604,  S.  C.  in  Ex.  Ch.;  Han.sard  v.  Robinson,  7  B.  &  C.  90;  9  D.  &  R. 
860,  S.  C;  Pierson  v.  Hutchinson,  2  Camp.  211;  6  Esp.  126,  S.  C.  Mayor 
t'.    Johnson,    3   Camp.    324;    Davis  v.    Dodd,    4    Taunt.    602;   Champion    v. 

5  LAW  OF  EVID.— V.  II.  (3271) 


404  SECONDARY  EVIDENCE  OF  MURAL  MONUMENTS.        [PAET  II. 

As  this  law,  however,  was  found  to  occasion  great  inconvenience  to 
the  payee  of  a  lost  note, — who,  in  order  to  recover  payment,  was  com- 
pelled to  have  recourse  to  a  court  of  equity,' — it  has  been  materially 
modified,  first,  by  the  Common  Law  Procedure  Act  of  1854,^  and 
next,  by  the  Bills  of  Exchange  Act,  1882.'  It  is  only  necessary 
here  to  refer  to  the  first  named  statute,  which  in  §  87  enacts,  that 
"  In  case  of  any  action  founded  upon  a  bill  of  exchange  or  other 
negotiable  instrument," — which  last  words  will  include  a  bank  note,* 
— "  it  shall  be  lawful  for  the  court  or  a  judge  to  order  that  the  loss 
of  such  instrument  shall  not  be  set  up,  provided  an  indemnity  is 
given,  to  the  satisfaction  of  the  court  or  judge,  or  a  master  against 
the  claims  of  any  other  person  upon  such  negotiable  instrument."^ 
If  the  payee  of  a  lost  note  can  show  that  the  instrument  was  never 
negotiable,  as  having  been  originally  made  payable  to  himself  alone, 
he  cannot,  as  it  would  seem,  be  called  upon  to  give  an  indemnity 
under  this  clause,  but  the  action  will  be  sustainable,  either  on  the  in- 
strument itself,  or  on  the  consideration;  because,  in  such  case,  the  de- 
fendant cannot  be  rendered  liable  to  pay  the  amount  a  second  time.^ 

§  438.     Secondly,  the  contents  of  writings  may  be  proved  by    §  408 
secondary  evidence,  when  their  production  is  either  i^hysicaJhj  im- 
possible, or  highly  inconvenient.     Thus,'  inscriptions  on  uxills  and 
fixed  tables,   mural  monuments,   gravestones,  surveyors'  marks  on 

Terry,  3  B.  &  B.  295;  7  Moore,  130,  S.  C;  Bevan  v.  Hill,  2  Camp.  381;  Wood- 
ford V.  Whiteley,  M.  &  INI.  517.  See  Alexander  v.  Strong,  9  M.  &  W.  733; 
Lubbock  V.  Tribe,  3  M.  &  W.  G07;  Blackie  v.  Pidding,  6  Com.  B.  196;  Charnley 
V.  Grundy,  14  Com.  B.  608. 

1  Warmsley  v.  Child,  1  Ves.  Sen.  341;  Toulmin  v.  Price,  5  Ves.  238;  Ex  parte 
Greenway,  6  Ves.  812;  Macartney  r.  Graham,  2  Sim.  285;  Davies  v.  Dodd,  1 
Wils.  Ex.  110;  MossopiJ.  Eadon,  16  Ves.  430. 

2  17  &  18  v.,  c.  125.  The  Irish  Act,  19  &  20  V.,  c.  102,  contains  a  similar 
provision  in  §  90.  ''  45  &  46  V.,  c.  61,  l?i  69  &  70. 

*  M'Donnell  r.  Murray,  9  Ir.  Law  P.,  N.  S.  495. 

^  See  Aranquren  v.  Scholfield,  1  H.  &N.  494;  King  c.  Zimmerman,  40  L.  J., 
C.  P.  278. 

8  Wain  V.  Bailey,  10  A.  &  E.  016;  recognised  in  Pamuz  v.  Crowe,  1  Ex.  P. 
173;  Clay  v.  Crowe,  8  Ex.  P.  298.  As  to  what  is  the  effect  of  the  bill  being 
destroyed,  see  2  322  of  the  Lst  Ed.  of  this  work,  and  AV right  v.  Ld.  Maidstone, 
1  Kay  &  J.  701,  per  Wood,  V.-C.  See,  too,  Conflans  Quarry  Co.  v.  Parker,  3 
Law  Rep.,  C.  P.  1;  37  L.  J.,  C.  P.  51,  S.  C;  where  circular  notes  having  been 
lost,  the  party  losing  them  was  held  not  entitled  to  sue  the  bankers  for  money 
had  and  received.  '  Gr.  Ev.  ?  94,  in  part. 

(3272) 


CHAP,  v.]       FOREIGN  DOCUMENTS — RECORDS — REGISTERS.  405 

boundary  trees,  notices  warning  trespassers  affixed  on  boards,  and 
the  like,  may  be  proved  by  secondary  evidence,  since  they  cannot 
conveniently,  if  at  all,  be  produced  in  court.  ^  A  remarkable  illus- 
tration of  this  rule  was  furnished  in  the  case  of  a  man,  who  was 
convicted  of  writing  a  libel  on  the  wall  of  the  Liverpool  gaol,  on 
mere  proof  of  his  handwriting.^  But,  in  order  to  let  in  secondary 
evidence,  it  must  clearly  appear  that  the  document  or  writing  is 
affixed  to  the  freehold,  and  cannot  easily  be  removed;  and  therefore, 
where  a  notice  was  merely  suspended  to  the  wall  of  an  office  by  a 
nail,  it  was  considered  necessary  to  produce  it  at  the  trial.^  On  one 
occasion,  the  Committee  for  Privileges  in  the  House  of  Lords 
received  in  evidence,  as  proof  in  a  pedigree,*  a  copy  of  a  plate  of 
the  arms  of  the  Knights  of  the  Garter,  which  had  been  put  up  in 
the  Chapel  Royal  at  "Windsor  in  the  reign  of  Henry  V.,  and  which, 
being  fastened  to  the  building  only  by  screws,  was  physically  re- 
movable; but  this  case  seems  to  rest,  at  least  partly,  on  the  ground 
that  the  plate  in  question  could  not  have  been  removed  without  a 
special  warrant  from  the  Queen. '^  If  a  document  be  deposited  in  a 
foreign  country,  and  the  laws  or  established  usage  of  that  country 
will  not  permit  its  removal,  secondary  evidence  of  the  contents  will 
be  admitted,  because  in  that  case,  as  in  the  case  of  mural  inscrip- 
tions, it  is  not  in  the  power  of  the  party  to  produce  the  original.* 

§  439.'  On  a  similar  ground,  the  existence  and  contents  of  any    §  409 
record  of  a  judicial  court,  and  of  entries  in  any  other  x^uhlic  books 
or  registers,   may  be   proved  by  an  examined  copy,   and  in  some 
cases  by  an  office  copy,   by  a  certified  copy,   or  even  by  a  mere 


'  Mortimer  v.  M'Callan,  6  M.  &  W.  68,  per  Ld.  Abinger,  and  72,  per  Alder- 
son,  B.;  E.  V.  Fursey,  6  C.  &  P.  84,  85  ;  Doe  v.  Cole,  id.  360,  per  Patteson,  J.; 
Bartholomew  v.  Stephens,  8  C.  &  P.  728,  per  id.;  Bruce  v.  Nicolopulo,  11  Ex. 
R.  129. 

2  Mentioned  by  Ld.  Abinger,  6  M.  &  W.  68. 

»  Jones  1'.  Tarleton,  9  M.  &  W.  675;  1  Dowl.  N.  S.  625,  S.  C. 

*  Semble,  the  above  evidence  would  not  have  been  admissible,  had  not  the 
question  at  issue  related  to  a  j^ediffrre,  Berkeley  Peer.,  8  H.  of  L.   Cas.  21,  37. 

^  Shrewsbury  Peer,  7  H.  of  L.  Cas.,  1,  10. 

«Alivonr.  Furnival,  1  C.  M.  &  R.  277,  291,  292;  Boyle  v.  Wiseman,  10 
Ex.  R.  647;  Quilter  v.  Jorss,  14  Com.  B.,  N.  S.  747,  S.  C.  See  14  &  15  V., 
c.  99,  ?  7;  and  Crispin  v.  Doglioni,  32  L.  J.,  Pr.  &  Mat.  109. 

^  Gr.  Ev  ?  91,  in  part. 

(3273) 


406  PAPERS  IN  POSSESSION  OF  OPPONENT.        [PART  II. 

certificate.'  This  rule  extends  to  all  records,  and  entries  of  a 
public  nature  in  books  required  by  law  to  be  kept;  and  is 
adopted, — partly,  because  of  the  serious  risk  of  loss  which  the 
removal  of  such  documents  would  occasion,— partly,  because  of 
the  inconvenience  which  the  public  might  experience  from  the 
removal,  especially  if  the  documents  were  wanted  in  two  or  more 
places  about  the  same  time, — and  partly,  because  of  the  public 
character  of  the  facts  recorded,  and  the  consequent  facility  of 
detection  of  any  fraud  or  error  in  the  copy.^ 

§  440.  Thirdly,  when  the  document  is  in  the  possession  of  the  §  410 
adversary,  who  xvithholds  it  at  the  trial,  secondary  evidence  of  its 
contents  will  be  admitted,  provided  that  a  notice  to  produce  the 
original  has  been  duly  served,  where  such  notice  is  requisite.''  In 
the  application  of  this  rule,  no  distinction  is  recognised  between 
civil  and  criminal  cases;  but  in  either  mode  of  proceeding,  in  order 
to  render  the  notice  available,  it  must  be  first  shown  that  the  in- 
strument is  in  the  hands,  or  under  the  control,  of  the  party  required 
to  produce  it.*  Of  this  fact  very  slight  evidence  will  raise  a  sufiieient 
presumption,  where  the  document  exclusively  belongs  to  him,  or 
regularly  ought  to  be  in  his  custody  according  to  the  course  of 
business;  and  therefore,  where  a  bankruptcy  certificate  was  proved 
to  have  been  obtained  for  the  defendant,  the  court  presumed  that  it 
had  come  into  his  possession.^  So,  if  papers  were  last  seen  in  the 
hands  of  the  defendant,  it  lies  upon  him  to  trace  them  out  of  his 
possession,®  and  for  this  purpose  he  may  interpose  with  evidence 
while  the  plaintiff's  case  is  proceeding;  and,  as  such  evidence  is 
submitted  to  the  judge  alone,  its  admission  does  not  give  the  plain- 
tiff's counsel  a  right  to  reply  to  the  jury.'     It  would  seem  that, 


^  This  .subject  will  be  discussed  post,  ?  1534,  et  seq.  .-  B.  N.  P.  226. 

3R.  V.  Watson,  2  T.  R.  201,  per  Buller,  J.;  Att.-Gen.  v.  Le  Marchant,  id.  n.; 
Cates  r.  "Winter,  3  T.  R.  306.  As  to  the  presumption  respecting  the  stamp, 
see  ante,  ^  148. 

*  Sharpe  v.  Lamb,  11  A.  &  E.  805;  3  P.  &  D.  454,  S.  C. 

^  Henry  v.  Leigh,  3  Camp.  502,  per  Ld.  Ellenborough.  See,  also,  Robb  v. 
Starkey,  2  C.  &  Kir.  143. 

«  R.  V.  Thistlewood,  33  How.  St.  Tr.  757,  758;  R.  v.  Ings,  id.  989. 

^  Harvey  v.  Mitchell,  2  M.  &  Rob.  366,  per  Parke,  B. ;  Smith  v.  Sleap,  1 
C.  &  Kir.  48,  per  Alderson,  B. 

(3274) 


CHAP,  v.]  NOTICE  TO  PRODUCE — POSSESSION  BY  AGENT.  407 

where  a  party  has  notice  to  produce  a  particular  instrument  traced 
to  his  possession,  he  cannot  object  to  parol  evidence  of  its  contents, 
on  the  ground  that,  previous  to  the  notice,  he  had  ceased  to  have 
any  control  over  it,  unless  he  has  stated  this  fact  to  the  opposite 
party,  and  has  pointed  out  to  him  the  person  to  whom  he  delivered 
it  j^  neither  can  he  escape  the  effect  of  the  notice,  by  afterwards 
voluntarily  parting  with  the  instrument,  which  it  directs  him  to 
produce.^ 

§  441.  If  the  instrument  be  in  the  possession  of  a  person  in  ?  411 
privity  with  the  party,  such  as  his  banker,^  agent,  servant,  deputy, 
or  the  like,  such  person  need  not  be  served  with  a  subpoena  duces 
tecum,  or  even  be  called  as  a  witness,  but  a  notice  given  to  the 
party  himself  will  suffice.*  Thus,  a  notice  to  a  shipowner  to  pro- 
duce papers,  though  the  captain  has  possession  of  them  for  his 
own  protection,^ — or  a  notice  to  a  sheriff  to  produce  a  warrant, 
which  is  shown  to  have  been  returned  to  the  under-sheriff  during 
the  time  that  the  sheriff  remained  in  office,^— will  justify  the 
admission  of  secondary  evidence.  Where  a  document  deposited 
in  a  court  of  equity  by  a  party  to  a  suit,  and  scheduled  in  his 
answer,  had  been  ordered  to  be  delivered  to  him,  it  was  held  to 
be  sufficiently  within  his  control  to  let  in  secondary  evidence  after 
notice  to  produce,  though  it  appeared  that,  at  the  time  of  the  trial, 
the  document  was  still  in  the  hands  of  an  officer  of  the  courtJ 
But  though,  in  order  to  render  the  notice  available,  the  party  need 
not  have  actual  possession  of  the  instrument,  he  must  have  such  a 
right  to  it  as  would  entitle  him,  not  merely  to  inspect,  but  to  retain 


'  Sinclair  v.  Stevenson,  1  C.  &  P.  585,  586,  per  Best,  C.  J.  In  Knight  v. 
Martin,  Gow,  E.  103,  where  secondary  evidence  was  held  inadmissible,  the 
party,  who  was  served  with  notice  to  produce  a  lease,  told  his  opponent  that 
he  had  assigned  it. 

2  Per  Dallas,  C.  J.,  in  Knight  v.  Martin,  Gow,  E.  104. 

*  Partridge  v.  Coates,  Ey.  &  M.  156,  per  Abbott,  C.  J. ;  Burton  v.  Payne, 
2  C.  &  P.  520,  per  Bayley,  J. 

*  Sinclair  v.  Stevenson,  1  C.  &  P.  584,  per  Best,  C.  J. 

*  Baldney  v.  Eitchie,  1  Stark.  E.  33S,  per  Ld.  Ellenborough. 

6  Taplin  v.  Atty,  3  Bing.  164  ;  Suter  v.  Burrell,  2  H.  &  N.  867;  27  L.  J., 
Ex.  193,  S.  C. 

'  Eush  V.  Peacock,  2  M.  &  Eob.  162,  per  Ld.  Denman. 

(3275) 


40S  SERVICE  OF  NOTICE — CONTENTS  OF  NOTICE.  [PART  II. 

it  ;  and,  therefore,  uhere  it  was  held  l)y  a  stakeholder  between  the 
defendant  and  a  sti'anger  to  the  cause,'  or  where  it  was  dehvered 
to  a  third  person,  under  whom  the  defendant  justified  in  an  action 
of  trespass,  and  by  whose  directions  he  acted,'  parol  evidence  of 
its  contents  was  rejected,  notwithstanding  that  a  notice  to  produce 
had  been  duly  served  on  the  defendant. 

§  442.  The  notice, — which  must,  as  it  would  seem,  be  given  not  I  412 
only  in  ivriting,^  but,  so  far  as  civil  proceedings  are  concerned,  in  a 
special  form,* — may  be  directed  to  the  party  or  to  his  solicitor,  and 
may  be  served  on  either  -^  indeed,  it  will  be  sufficient  to  leave  the 
notice  with  a  servant  of  the  party  at  his  dwelling-house,®  or  with  a 
clerk  at  the  solicitor's  office ;  and  where  the  solicitor  has  been 
changed,  a  notice  served  on  the  first  solicitor  before  the  change  will 
suffice  ;  for  otherwise  the  effect  of  the  notice  might  be  easily  evaded 
by  changing  the  legal  adviser  on  the  eve  of  the  trial.'  A  notice  duly 
served  on  the  party  will  not  be  rendered  invalid  by  a  subsequent  bad 
service  on  the  solicitor.^ 

§  443.  It  may  be  difficult  to  lay  down  any  general  rule  as  to    ^  413 

1  Parry  v.  May,  1  M.  &  Rob.  279,  per  Littledale,  J. 

2  Evans  v.  Sweet,  Ry.  &  M.  83,  per  Best,  C.  J. 

3  See  Rules  of  Sup.  Ct.,  1883,  Order  LXVI.,  R.  1. 

*  Order  XXXII.,  R.  8.     The  form  is  as  follows  :— 
No.  14.     App.  B. 
[Heading  as  in  Form  1.] 
''  Take  notice,  that  you  are  hereby  required  to  produce   and  show  to  the 
court  on  the  trial  of  this  all  books,  papers,  letters,  copies  of  letters, 

and  other  writings  and  documents  in  your  custody,  possession,  or  power, 
containing  any  entrj%  memorandum,  or  minute  relating  to  the  matters  in 
question  in  this  ,  and  particularly 

Dated  the  day  of  ,  18     . 


To  the  above-named 


h    solicitor  or  agent. 


(Signed) 


,  of  ,  agent  for 

,  solicitor  for  the  above- 
named  . ' ' 
^Hughes  V.  Budd,  8  Dowl.  315;  R.  v.  Barker,  1  Fost.  &  Fin.  32G ;  R.  v. 
Boucher  id.  486  ;   Houseman   v.    Roberts,  5  C  &   P.  394  ;   Gates   r.  Winter, 
3  T.  R.  306.     This  last  case  was  a  qui  tam  action.     See  R.  t.  Down  ham,  1 
Fost.  &  Fin.  386. 

«  Evans  v.  Sweet,  Rv.  &  M.  84,  per  Best,  C.  J. 
'  Doe  V.  Martin.  1  M.  &  Rob.  242,  per  Tindal,  C.  J. 
^  Hughes  V.  Budd,  8  Dowl.  315,  per  Patteson,  J. 

(3276) 


CHAP,  v.]        CONTENTS  OF  NOTICE  TO  PRODUCE.  409 

ichat  the  notice  ought  to  contain,  since  much  must  depend  on  the 
particular  circumstances  of  each  case;  but  thus  much  is  clear,  first, 
that  no  mistatement  or  inaccuracy  in  the  notice  will  be  deemed 
material,  if  it  be  not  really  calculated  to  mislead  the  opponent;* 
and  next,  that  it  is  not  necessary,  by  condescending  minutely  to 
dates,  contents,  parties,  &c.,  to  specify  the  precise  documents 
intended.  Indeied,  it  may  be  dangerous  to  do  so,  since  if  any 
material  errors  were  to  creep  into  the  particulars,  the  party  sought 
to  be  affected  by  the  notice  might  urge,  with  possible  success, 
that  ■  he  had  been  misled  thereby.  If  enough  is  stated  on  the 
notice  to  induce  the  party  to  believe  that  a  particular  instrument 
will  be  called  for,  this  will  be  sufficient."  Thus  a  notice  to  pro- 
duce "  all  letters  written  by  the  plaintiff  to  the  defendant,  relating 
to  the  matters  in  dispute  in  the  action,"  ^  or  "  all  letters  written 
to  or  received  by  the  plaintiff  between  the  years  1837  and  1841, 
both  inclusive,  by  and  from  the  defendants,  or  either  of  them, 
or  any  person  in  their  behalf;  and  also  all  books,  papers,  &c., 
relating  to  the  subject  matter  of  this  cause,"  *  has  been  held 
sufficient  to  let  in  parol  evidence  of  a  particular  letter  not  other- 
wise specified.  In  these  cases  the  names  of  the  parties  by  and 
to  whom  the  letters  were  addressed  appeared  on  the  notice,  and 
perhaps  this  circumstance  sufficiently  distinguishes  them  from  an 
older  decision,^  where  a  notice  to  produce  "  all  letters,  papers, 
and  documents,  touching  or  concerning  the  bill  of  exchange 
mentioned  in  the  declaration,  and  the  debt  sought  to  be  re- 
covered," **  was  held  too  vague  to  admit  secondary  proof  of  a  notice 
of  dishonour  sent  by  the  plaintifi"  to  the  defendant.  The  authority, 
however,  of  this  last  case  has  been  considerably  shaken,  if  not 
entirely  overruled,  by  a  subsequent  decision  of  the  court  of  Queen's 
Bench,  where,  in  an  action   for  work  and  labour,  a  notice  to  pro- 


1  Justice  V.  Elstob,  1  Post.  &  Fin.  258;  Graham  r.  Oldis,  id.  262. 

2  See  Eogers  v.  Custance,  2  M.  &  Eob.  181. 

^  Jacob  V.  Lee,  2  M.  &   Rob.  33,  per  Patteson,  .J. ;  Conybeare  v.  Farries,   5 
Law  Eep.,  Ex.  16. 

*  Morris  f.  Hauser,  2  M.  &  Rob.   392,    per  Ld.   Denman;  C.   &  Marsh.   29, 
S.  C,  nom.  Morris  v.  Hannen. 

^  This  distinction  was  pointed  out  and  relied  upon  by  Patteson,  J.,  in  Jacob 
V.  Lee,  2  U.  &  Rob.  33. 

^  France  v.  Lucy,  Ry.  &  M.  341,  per  Best,  C.  J. 

(3277) 


410  TIME  AND  PLACE  OF  SERVICE  OF  NOTICE.  [pART  II. 

duce  "  all  accounts  relating  to  the  matters  in  question  in  this 
cause,"  was  beld  to  comprehend  with  sufficient  precision  a  particular 
account  relating  to  a  small  part  of  the  work,  though  it  appeared 
that  many  such  accounts  for  difPerent  parts  of  the  work  had  been 
rendered  by  the  plaintiff  to  the  defendant.'  The  case  of  Jones  v. 
Edwards"  is  not  affected  by  this  decision.  That  was  an  action 
against  four  defendants,  as  owners  of  a  sloop,  to  recover  an  account 
for  warehousing  the  rigging  of  the  vessel.  In  order  to  prove  that 
one  of  the  defendants  was  a  joint  owner,  the  plaintiff  called  for  a 
letter,  which  was  stated  to  have  been  written  nine  years  before  by 
this  defendant  to  the  son  of  another  defendant,  and  relied  upon  a 
"  notice  to  produce  letters  and  copies  of  letters,  and  all  books  re- 
lating to  the  cause."  The  Court  decided  that  the  notice  was  too 
uncertain,  and  no  sensible  man  could  entertain  a  different  opinion. 

§  444.  In  one  case,  where  the  notice  misdescribed  the  title  of  §  414 
the  cause,  it  was  held  to  be  invalid;^  but  as  the  strict  application 
of  this  rule,  incases  where  it  is  evident  that  the  party  served  has 
not  been  misled,  might  be  productive  of  serious  injustice,  it  is 
hoped  that,  at  the  present  day,  it  would  not  be  allowed  to  prevail, 
unless  the  misdescription  were  of  a  flagrant  nature.  Indeed,  the 
Court  of  Exchequer  has  thrown  out  an  intimation  to  this  effect; 
for  where  a  notice  was  objected  to  on  the  ground  that  it  was 
entitled  (by  mistake)  in  a  wrong  court,  Mr.  Baron  Alderson  dis- 
countertanced  the  objection,  saying,  "  One  does  not  know  where 
we  are  to  stop.  Would  the  notice  be  bad  if  one  of  the  names 
was  spelt  wrong?  .  .  At  the  time  of  the  decision  in  Harvey  v. 
Morgan,  the  courts  were  much  more  strict  than  now  as  to  matters 
of  this  nature."  * 

§  445.  As  to  the  time  and  place  of  the  service,  no  precise  rule    §  415 
can  be  laid  down,   except  that  it  must  be  such  as  to   enable  the 
party,  under  the  known  circumstances  of  the  case,  to  comply  with 
the  call.^     If  the  person  to  be  served,  whether  client  or  solicitor, 

1  Eogers  v.  Custance,  2  M.  &  Rob.  179.  ^  M'Cl.  &  Y.  139. 

^  Harvey  v.  Morgan,  2  Stark.  R.  17.  The  notice  in  that  case  was  entitled 
"  A.  &  B.,  assignees  of  C.  &D.,  v.  E.,"  instead  of  "  A.  &  B.,  assignees  of  C. 
V.  E."  *  Lawrence  v.  Clark,  14  M.  &  W.  251. 

*  R.  V.  Hankins,  2  C.  &  Kir.  823;  R.  v.  Kitson,  Pearce  &  D.  187. 

(3278) 


CHAP.,  V.J  TIME    OF    SERVING    NOTICE    TO    PRODUCE.  411 

dwell  in  another  town  than  that  in  which  the  trial  is  had,  he  must 
generally  be  served  before  the  coramission  day,'  and  if  the  service 
be  postponed  until  he  has  left  home  to  attend  the  court,  it  will  be 
insufficient.^  In  town  causes,  however,  and  in  country  causes 
where  the  solicitor  lives  in  the  assize  town,  a  shorter  notice  will  be 
required,  and  provided  the  documents  be  such  as  may  reasonably  be 
presumed  to  be  in  the  solicitor's  possession,  a  service  on  him,  or  at 
his  office,  before  six  o'clock^  in  the  afternoon  of  the  day  preceding 
the  trial,  will  in  general  be  sufficient ;  *  though,  if  they  would  pro- 
bably be  in  the  client's  custody, — as,  for  instance,  if  they  were  a 
tradesman's  books,'^  or  if  they  were  letters  or  papers  not  obviously 
connected  with  the  cause, — such  a  service  would  be  too  late,  since 
the  solicitor  should  have  sufficient  time  to  communicate  with  his 
client  for  the  purpose  of  procuring  the  documents  required.*^  If  a 
party  be  served  with  notice  sufficiently  early  to  enable  him  to  pro- 
duce the  document,  it  makes  no  difference  that  at  the  time  of  the 
service  the  cause  is  part  heard/ 

§  446.  If  the  party  served  can  prove  that  his  papers  are  in  a    ?  416 
foreign  country,  or  at  such  a  distance  from  the  place  of  trial  as  to 

'  Trist  V.  Johnson,  1  M,  &  Rob.  259,  per  Pcark,  J. ;  E.  v.  Ellieombe,  id.  260, 
per  Littledale  J. ;  Lessee  of  Leader  v.  Duggan,  Ir.  Cir.  R.  124  ;  Humphrey  v. 
St.  Leger,  id.  714  ;  M'Master  &  Boyle's  case,  id.  768.  See  Howard  t'.  Williams, 
9  M.  &  W.  725. 

^  George  v.  Thompson,  4  Dowl.  656  ;  Hargest  v.  Fothergill,  5  C.  &  P.  303, 
per  Taunton,  J. 

=*  See  post,  I  1586a,  citing  Order  LXIV.,  R.  11,  of  the  Rules  of  the  Sup.  Ct., 
1883. 

*  Atkins  V.  Meredith,  4  Dowl.  658  ;  Leaf  v.  Butt,  C.  &  Marsh.  451,  per 
Alderson,  B.-,  Meyrick  v.  Woods,  id.  452,  per  id.;  Firkin  v.  Edwards,  9  C.  & 
P.  478,  per  Williams,  J. ;  Gibbons  v.  Powell,  id.  634,  per  Gurney,  B. ;  R.  v. 
Hamp,  6  Cox,  167,  per  Ld.  Campbell ;  Holt  v.  Miers,  9  C.  &  P.  195  ;  Law- 
rence V.  Clark,  14  M.  &  W.  250.  If  the  trial  is  to  take  place  on  the  Monday, 
a  service  on  the  Sunday,  or  even  on  Saturday  after  2  p.  m,  (see  Rule  cited  in 
last  note),  will  not  do  ;  and  perhaps  a  service  on  a  Sunday  would*  in  any 
event  be  considered  bad.  See  Hughes  v.  Budd,  8  Dowl.  317,  per  Patteson,  J. ; 
and  29  C.  2,  c.  7,  ?  6. 

*  Atkins  V.  Meredith,  4  Dowl.  658. 

*  Byrne  v.  Harvey,  2  M.  &  Rob.  89,  per  Ld.  Denman  ;  Vice  v.  Lady 
Anson,  M.  &  M.  97,  per  Ld.  Tenterden  ;  Aflalo  v.  Fourdrinier,  id.  335,  n.,  per 
Tindal,  C.  J. 

'  Sturm  V.  Jeffi-ee,  2  C.  &  Kir.  442,  per  Pollock,  C.  B. 

(.3279) 


412  TIME    OF    SERVING   NOTICE    TO    PRODUCE.  [PART  II. 

render  it  impossible  for  him  to  produce  them  under  an  ordinary 
notice,  sucb  a  notice  will  be  inoperative  ;  but  the  courts  are  very 
properly  inclined  to  favour  the  sufficiency  of  the  notice,  whenever 
the  circumstances  of  the  case  will  warrant  them  in  so  doing. 
Thus,  where  a  party  had  gone  abroad,  leaving  the  cause  in  the 
hands  of  his  solicitor,  it  was  presumed-  that  he  had  left  with 
him  all  papers  material  to  the  cause,  and,  consequently,  a  notice 
served  on  the  solicitor  the  evening  next  but  one  before  the  trial, 
was  held  to  be  sufficient.'  So,  a  four  days'  notice,  given  to  the 
defendant  to  produce  letters  written  by  him  to  his  partner  in  New 
South  Wales,  was  considered  good,  where  long  litigation  on  the 
subject  of  them  made  it  presumable  that  they  had  been  remitted 
to  this  country."  It  has  even  been  held,  that  a  similar  notice  to 
a  foreign  defendant  was  sufficient,  though  the  letters  required  had 
been  addressed  to  him  eighteen  years  before  at  his  residence 
abroad.  In  that  case,  the  action  had  commenced  seven  months 
before  the  trial  ;  and  though  it  was  objected  that  the  defendant 
had  had  no  time  to  procure  the  original  papers  to  be  transmitted 
from  his  own  country,  where  it  was  to  be  presumed  they  had  been 
left,  C.  J.  Abbott  admitted  secondary  evidence  of  their  contents, 
observing  that  it  would  lead  to  great  inconvenience  and  delay,  if 
trials  were  allowed  to  be  postponed  upon  such  an  objection.^ 

§  447.  The  party  who  seeks  the  production  of  papers  must  not  §  417 
put  his  adversary  to  needless  trouble  and  expense.  Therefore, 
where  a  defendant's  solicitor,  having  been  served  in  Essex  with 
notice  to  produce  certain  deeds,  fetched  them  from  London,  and 
on  the  commission  day  was  served  with  a  fresh  notice  to  produce 
another  deed,  upon  which  he  stated  that  the  document  was  in 
town,  where  he  had  already  been  once,  but  that  it  should  be 
forthcoming  at  the  trial  if  the  plaintiff  would  pay  the  expenses 
of  a  messenger,  which  ofPer  was  declined,  the  court  held  that 
the  defendant  was  justified    in  not    complying    with    the  notice, 


1  Bryan  v.  Wagstafif,  Ry.  &  M.  327,  per  Abbott,  C.  J. ;  2  C.  &  P.  125,  S.  C. 

2  StuTge,  V.  Buchanan,  10  A.  &  E.  598. 

^  Drabble  v.  Donner,   Ry.  &  M.  47.     But  see  Ehrenspergen  v.  Anderson,  3 
Ex.  R.  148. 

(3280) 


CHAP,  v.]     NOTICE  TO  PRODUCE  WHEN  UNNECESSARY.         413 

and  that  secondary  evidence  was  inadmissible.'  If  a  party,  on 
being  served  with  a  notice  to  produce  a  document,  states  that  it 
is  not  in  existence,  i:)arol  proof  of  its  contents  will  be  received, 
and  no  objection  can  be  taken  to  the  lateness  of  the  service.^  It 
may  here  be  added,  that  a  notice. to  produce  certain  documents 
"upon  the  trial  of  the  cause,"  applies  not  merely  to  the  trial 
which  it  immediately  precedes,  but  to  every  subsequent  trial  of  the 
same  cause  which  may  take  place.^ 

§  448.  The  mode  of  proving  that  a  notice  to  produce  has  been  ^  418 
duly  served  is  now  regulated  by  the  Rules  of  the  Supreme  Court, 
1883,  Order  XXXII.  R.  8,*  which  provides,  that  "An  affidavit  of 
the  solicitor,  or  his  clerk,  of  the  sei-vice  of  any  notice  to  produce, 
and  of  the  time  when  it  was  served,  with  a  copy  of  the  notice  to 
produce,  shall  in  all  cases  be  sufficient  evidence  of  the  service  of 
the  notice,  and  of  the  time  when  it  was  served." 

§  449.  In  seven  cases  notice  to  produce  is  not  necessary.  The  ^  419 
fa-st  is,  where  the  instrument  in  the  possession  of  the  adversary, 
and  that  tendered  in  proof,  are  either  duplicate  origiyials,^  or  are 
counterparts,  and  the  part  offered  in  evidence  has  been  executed 
by  the  adversary,  or  by  some  person  through  whom  he  claims. 
Here  no  notice  is  necessary,  because,  as  before  stated,  the  instru- 
ment produced  is  considered,  not  as  secondary,  but  as  primary 
evidence.® 

§  450.  Secondly,  a  notice  to  produce  is  not  required,  where  the    ^  420 
instrument  to  be  proved  is  itself  a  notice.     This  exception  appears 
to  have  been  originally  adopted  in  regard  to  notices  to  produce,  for 
the  obvious  reason,  that,  if  a  notice  to  produce  such  papers  were 


^  Doe  V.  Spitty,  3  B.  &  Ad.  182.  In  this  case,  the  second  notice,  having 
been  served  on  the  commission  day,  would  perhaps  have  been  held  too  late, 
independent  of  the  special  circumstances. 

"^  Foster  v.  Pointer,  9  C.  &  P.  720,  per  Gurney,  B. 

*  Hope  V.  Beadon,  L.  M.  &  P.  593;  17  Q.  B.  509,  S.  C. 

*  The  Irish  Act,  16  &  17  V.,  c.  113,  contains,  in  ^  120,  a  somewhat  similar 
provision. 

*  Colling  V.  Treweek,  6  B.  &  C.  398,  per  Bayley,  J. ;  Philipson  r.  Chase,  2 
Camp.  Ill,  per  Ld.  Ellenborough.  «  Ante,  l  426. 

(3281) 


414  NOTICE  TO  PRODUCE  A  NOTICE  UNNECESSARY.         [PART  n. 

necessary,  the  series  of  notices  would  become  infinite.^  The  judges, 
however,  have  subsequently  extended  the  exception  to  many  other 
notices;  partly,  perhaps,  from  a  misapprehension  of  the  ground  on 
which  the  doctrine  rests ;  ^  partly,  from  the  experienced  inconveni- 
ence attendant  on  a  strict  observance  of  the  rule  requiring  notice;' 
partly,  because  the  secondary  evidence  that  is  usually  offered  of  a 
notice  is  a  copy  of  the  paper  sent,  which  partakes  in  a  great  measure 
of  the  character  of  a  duplicate  original;*  and,  chiefly,  because  it 
constantly  happens  that  the  opposite  party  is  well  aware,  frorn  the 
nature  of  the  action,  that  he  will  be  charged  with  the  possession  of 
the  original  document.^  On  one  or  other  of  these  grounds,  it  has 
been  held,  that,  in  order  to  let  in  proof  by  a  copy,  if  not  any  species 
of  secondary  evidence,  no  notice  is  required  to  produce  a  notice  to 
quit;®  a  notice  of  dishonour,^  provided  the  action  be  brought  upon 
the  bill,  but  not  otherwise;*  notices  of  action,  or  written  demands, 
which  are  necessary  to  entitle  the  plaintiff  to  recover;'  and  bills  of 
costs  of  solicitors,  and  parliamentary  agents,  delivered  pursuant  to 
statute.'" 


'  3  St.  Ev.  730;  Philipson  v.  Chase,  2  Camp.  111.     But  see  ante,  ?  448. 

*  In  Philipson  v.  Chase,  2  Camp.  Ill,  Ld.  Ellenborough  observes,  "lap- 
prove  of  the  practice  as  to  notices  to  quit;  and  I  remember  when  the  point 
■was  first  ruled  by  Wilson,  J.,  who  said,  that  if  a  duplicate  of  the  notice  to  quit 
was  not  of  itself  sufficient,  no  more  ought  a  duplicate  of  the  notice  to  produce, 
and  thus  notices  might  be  required  in  infinitum."  The  fallacy  of  this  reason- 
ing is  ably  exposed  in  3  St.  Ev.  730. 

3  2  Ph.  Ev.  226,  n.  5.  *  Kine  v.  Beaumont,  3  B.  &  B.  291. 

5  Colling  V.  Treweek,  6  B.  &  C.  399,  400,  per  Bayley,  J. ;  Eobinson  v.  Brown, 
3  Com.  B.  754,  per  Maule,  J.     See  post,  ^  452. 

6  Doe  V.  Somerton,  7  Q.  B.  58;  Jory  v.  Orchard,  2  B.  &  P.  41,  per  Ld.  Eldon; 
Colling  V.  Treweek,  G  B.  &  C.  398,  per  Bayley,  J.  See  K.  v.  Mortlock,  7  Q.  B. 
459. 

'  Swain  v.  Lewis.  2  C.  M.  &  E.  261 ;  5  Tyr.  998,  S.  C. ;  Kine  v.  Beaumont,  3 
B.  &  B.  288;  7  Moore,  112,  S.  C;  Ackland  v.  Pearce,  2  Camp.  601,  per  Ld. 
Blanc,  J.;  Roberts  v.  Bradshaw,  1  Stark.  R.  28;  Colling  v.  Treweek,  6  B.  &  C. 
398,  per  Bayley,  J.  These  cases — the  first  two  of  which  were  decided  after 
conferring  with  the  judges  of  the  other  courts,— put  the  question  beyond  all 
dispute,  and  overrule  the  earlier  decisions  of  Langdon  v.  Hulls,  5  Esp.  156, 
and  Shaw  v.  Markham,  Pea.  R.  165. 

**  Lanauze  v.  Palmer,  M.  &  M.  31,  per  Abbott,  C.  J. 

9  Jory  V.  Orchard,  2  B.  &  P.  39. 

1°  Colling  V.  Treweek,  6  B.  &  C.  394;  9  D.  &  R.  456,  S.  C.  This  case  was 
decided  on  |  23  of  the  repealed  Act,  2  G.  2,  c.  23,  but  it  is  equally  applicable 
to^^  37  of  6  &7  v.,  c.  73. 

(3282) 


CHAP,  v.]  WHEN  NOTICE  TO  PRODUCE  UNNECESSARY.  415 

§  45i.  On  one  occasion,  where  an  action  was  brought  against  a  ^  421 
surety,  on  a  bond  conditioned  to  pay  to  the  plaintifi",  within  six 
months  after  notice,  the  sum  that  should  become  due  from  the 
principal,  a  notice  to  produce  this  notice  was  held  necessary  by 
Lord  Ellenborough,  on  the  ground  that  it  was  not  a  mere  notice, 
but  in  the  nature  of  a  statement  of  account  between  the  plaintiff 
and  the  principal.'  Whether  this  case  would  now  be  considered  a 
binding  authority,  may  be  well  questioned,  since,  in  principle,  it  is 
difficult  to  distinguish  it  from  several  of  the  cases  cited  above,  in 
which  the  notice  to  produce  has  been  deemed  unnecessary.  But, 
be  this  as  it  may,  the  judges  have  determined, — in  a  case  where 
two  parties  had  become  sureties,  by  a  joint  and  several  bond,  for 
the  payment,  within  one  month  after  notice  should  have  been 
given  to  them,  of  such  sum  as  should  be  due  from  their  prin- 
cipal,— that  the  service  of  notice  upon  one  of  the  parties  could 
not  be  proved  in  an  action  brought  against  the  other,  by  pro- 
ducing the  duplicate  of  the  notice,  but  the  first  party  should  have 
been  subpoenaed  to  produce  the  original,  or  to  account  for  its  non- 
production."  Indeed,  the  exception  would  seem  to  be  always  in- 
applicable to  cases  in  which  the  notice  has  been  served  on  a  third 
person.^ 

§  452.  Thirdly,  if,  from  the  nature  of  the  action,  or  indictment,  ^  422 
or  from  the  form  of  the  pleadings,  the  defendant  must  know  that 
he  will  be  charged  with  the  possession  of  an  instrument,  and  be 
called  upon  to  produce  it,  no  notice  to  produce  need  be  served  upon 
him.*  Thus,  in  an  action  of  trover  for  converting  a  bond,  a  bill 
of  exchange,  or  other  writing,'^  or  in  a  prosecution  for  stealing  any 
document,'^  the  counsel  for  the  plaintiff  or  the  Crown  may  at  once 
produce  secondary  evidence  of  its  contents,  even  though  the  defen- 


1  Grove  v.  Ware,  2  Stark.  R.  174. 

^  Robinson  v.  Brown,  3  Com.  B.  754.  ^  Id. 

*  Colling  V.  Treweek,  6  B.  &  C.  398,  399,  per  Bayley,  J.     See  ante,  ^§  407, 
408. 

^  Scott  r.  Jones,  4  Taunt.  865  ;    How   v.  Hall,   14    East,   275  ;    Buclier  v. 
Jarratt,  3  B.  &  P.  143.     These  cases  overrule  Cowan  v.  Abrahams,  1  Esp.  50. 

«  R.  V.  Aickles,  1  Lea.  297,  n.  a.;  R.  v.   Brennan,  3  Craw.  &  D.,  C.  C.  109, 
per  Perrin,  J. 

(3283) 


416  WHEN  NOTICE  TO  PRODUCE  UNNECESSARY.  [pART  II. 

dant  should  offer  to  produce  the  document  itself;'  and  this  excep- 
tion has  been  recognised  in  an  action  on  contract  against  a  carrier 
for  the  non  delivery  of  written  instruments,^  as  also  in  indictments 
for  conducting  a  traitorous  correspondence.^  It  has,  however,  been 
held  inapplicable  on  a  charge  of  forging  a  deed;*  and  no  doubt  can 
be  entertained  that  an  indictment  for  arson,  with  intent  to  defraud 
an  insurance  office,  dues  not  convey  such  a  notice  that  the  policy 
will  be  required,  as  to  dispense  with  a  formal  notice  to  pro- 
duce.^ So,  if  the  maker  of  a  note  or  cheque,  or  the  acceptor  of  a 
bill,  does  not,  as  defendant  in  an  action,  deny  by  his  plea  the 
making  or  acceptance,  the  plaintiff,  who  is  not  bound  to  produce 
the  instrument  as  part  of  his  case,^  since  it  is  admitted  on  the 
record,  may  object  to  the  defendant's  giving  secondary  evidence  of 
its  contents,  for  the  purpose  even  of  identification,  unless  a  notice 
to  produce  has  been  duly  served,'  or  unless  the  instrument  is  shown 
to  be  in  court. ^ 


§  453.  Fourthly,  in  odium  spoliatoris,  a    notice    need   not    be    ^  423 
given  to  the  adverse  party  to  produce  a  paper,  of  which  he  has 
fi-audulently  or  forcibly  obtained  possession,  as  where,  after  action 
brought,  he  has  received  it  from  a  witness,  in  fraud  of  a  subpcena 
duces  tecum." 

J  Whitehead  v.  Scott,  1  M.  &  Eob.  2,  per  Ltl.  Tenterden. 

2  Jolley  V.  Taylor,  1  Camp.  143,  per  Sir  J.  Mansfield,  C.  J. 

3  R.  V.  De  la  Motte,  1  East,  P.  C.  124;  Layer's  Case,  16  How.  St.  Tr.  170, 
171. 

*  R.  V.  Haworth,  4  C.  &  P.  254,  per  Parke,  J.  See  Spragge's  case,  cited  by 
Ld.  "Ellenborouj^h,  14. East,  276;  also,  R.  v.  Elworthy,  1  Law  Rep.,  C.  C.  103; 
37  L.  J.,  M.  C.  3,  S.  C. 

s  R.  V.  Ellicombe,  5  C.  &  P.  522,  per  Littledale,  J. ;  1  M.  &  Rob.  260,  S.  C. ; 
R.  V.  Kitson,  22  L.  J.,  M.  C.  118;  Pearce  &  D.  187,  S.  C.  See  R.  v.  Hum- 
phries, cited  2  Russ.  C.  &  M.  745;  R.  v.  Mortlock,  7  Q.  B.  459. 

"  The  plaintiff,  however,  cannot  recover  interest  on  the  bill  from  the  date 
of  its  maturity  without  producing  it,  Hutton  v.  "Ward,  15  Q.  B.  26;  Cliaplin 
V.  Levy,  9  Ex.  R.  534,  per  Parke,  B. 

'  Goodered  v.  Armour,  3  Q.  B.  956;  explaining  Read  v.  Gamble,  5  N.  &  M. 
433;  10  A.  &  E.  597,  n.  a,  S.  C;  Lawrence  v.  Clark,  14  M.  &  W.  250,  253. 
See,  also,  Chaplin  r.  Levy,  9  Ex.  R.  534,  per  Parke,  B. 

8  Dwyer  v.  Collins,  7  Ex.  R.  639. 

"  Leeds  v.  Cook,  4  Esp.  256,  per  Ld.  Ellenborough;  Doe  v.  Ries,  7  Bing, 
724. 

(3284) 


CHAP,  v.]  WHEN  NOTICE  TO  PRODUCE  UNNECESSARY.  417 

§  454.  Fifthly,  the  Legislature  has  interfered  on  behalf  of  mer-  ^  424 
chant  seamen,  whose  proverbial  inexperience  and  recklessness  have 
rendered  them  fit  objects  for  special  statutory  protection,  and  has 
enacted,  that  every  seaman  may  bring  forward  evidence  to  prove 
the  contents  of  his  agreement  with  the  master  of  the  ship,  or 
otherwise  to  support  his  case,  without  producing  or  giving  notice 
to  produce  the  agreement  itself  or  any  copy  of  it.' 

§  455.  Sixthly,  notice  will  not  be  required,  either  where  the'  ?  425 
adverse  party  or  his  solicitor  has  admitted  the  loss  of  the  docu- 
ment, for  in  such  case  the  notice  would  be  nugatory,"  or,  it  seems, 
where  the  party  in  possession  of  the  writing  might  himself  give 
secondary  evidence  of  its  contents  without  producing  it,  as,  for 
instance,  if  it  be  an  inscription  or  notice  attached  to  the  freehold.^ 
A  party,  however,  cannot  under  this  exception  call  witnesses  to 
prove  the  destruction  of  a  document  that  has  been  traced  into  the 
hands  of  his  opponent,  and  then  show  its  contents  by  secondary 
proof  without  serving  a  notice  to  produce,  because,  notwith- 
standing evidence  to  the  contrary,  the  document  may  still  be  in 
existence,  and,  at  any  rate,  the  opponent  may  dispute  the  fact  of  • 
its  destruction.* 

§  456.  Lastly,  a  notice  to  produce  is  rendered  unnecessary  by  ^  246 
proof  that  the  adverse  party,  or  his  solicitor,  has  the  original 
instrument  in  court;  for  the  object  of  the  notice  is  not, — as  was 
formerly  thought,'^ — to  give  the  opposite  party  an  opportunity  of 
providing  the  proper  testimony  to  support  or  impeach  the  docu- 
ment; but  it  is  merely  to  enable  him  to  produce  it,  if  he  likes, 
at  the  trial,  and  thus  to  secure  the  best  evidence  of  its  contents.® 
The  question  is  yet  undecided,  as  to  whether    a  solicitor   would 


^  17  &  18  V.,  c.  104,  ?  105.     See  Bowman  v.  Manzelman,  2  Camp.  315. 

2  K.  V.  Haworth,  4  C.  &  P.  254,  per  Parke,  J. ;  Foster  v.  Pointer,  9  C.  &  P. 
718,  per  Gurney,  B. ;  How  v.  Hall,  14  East,  276,  per  Ld.  Ellenborough;  Doe 
V.  Spitty,  3  B.  &  Ad.  182. 

*  Bartholomew  v.  Stephens,  8  C.  &  P.  728,  per  Patteson,  J. 

*  Doe  V.  Morris,  3  A.  &  E.  46;  4  N.  &  M.  598,  S.  C. 

*  Bate  (•.  Kinsey,  1  C.  M.  &  R.  38;  Cook  v.  Hearn,  1  M.  &  Rob.  201,  per 
Patteson,  J.;  Doe  t'.  Grey,  1  Stark.  R.  284,  per  Ld.  Ellenborough;  Exsdl  v. 
Partridge,  id.,  cited  as  ruled  per  Ld.  Kenyou. 

«  Dwyer  v.  Collins,  7  Ex.  R.  639. 

(3285) 


418  SECONDARY  EVIDENCE  WHEN  ADMISSIBLE.  [PART  11. 

be  ordered  to  search  among  his  papers,  if,  on  being  called  by  his 
client's  opponent  to  state  whether  he  had  a  particular  document 
in  court,  he  were  to  assert  that  he  did  not  know  whether  he  had 
brought  it  with  him  or  not,  and  that  he  did  not  intend  to  ascertain 
that  fact,  unless  he  were  compelled  to  do  so  by  the  judge. 

§  456a.  In  order  to   check  the  service  of  vexatious  notices  to 

produce,  a   rule  has   been    inserted  in  the  Orders  of  1883,  which 

'  provides  that,   "  if  a  notice  to  produce  comprises  documents  which 

are  not  necessary,  the  costs  occasioned   thereby  shall  be   borne  by 

the  party  giving  such  notice."  ' 

§  457.  Secondary  evidence  is,  in  the  fourth  place,  admissible,  ?  42* 
when  a  document  is  in  the  hands  of  a  stranger,  who  is  not  com- 
pelled by  law  to  produce  it,  and  who  refuses  to  do  so,  either  when 
summoned  as  a  witness  with  a  subpoena  duces  tecum,^  or  when 
sworn  as  a  witness  without  a  subpcena,  if  he  admits  that  he  has 
the  document  in  court.^  In  applying  this  rule  it  must  be  carefully 
borne  in  mind,  that  the  mere  disobedience  of  a  person  served  with 
a  subpoena  duces  tecum  will  not  render  admissible  secondary 
evidence  of  the  contents  of  the  document  which  he  is  called  upon 
to  produce;*  but  the  witness  must  also  be  justified  in  refusing  the 
production,  for  otherwise  the  party  will  have  no  remedy,  except  as 
against  him}  The  reason  why  the  rule  is  recognised  at  all  is  the 
same  as  that  which  admits  parol  proof,  when  the  adversary,  after 
notice,  refuses  to  produce  a  deed  in  his  possession, ^namely,  that 
the  party  oflPering  secondary  evidence  has  done  all  in  his  power  to 
obtain  the  original  document.''  If  therefore  a  solicitor  refuses  to 
produce  a  deed  as  claiming  a  lien  upon  it,  secondary  evidence  of  its 
contents  cannot  be  received,  provided  the  party  tendering  such 
evidence  be  the  person   liable  to  pay  the  solicitor's   charges.'     So, 

I  Rules  of  Sup.  Ct.  Ord.  XXXIL,  R.  9. 

"^  Marston  v.  DoAvnes,  1  A.  &  E.  31;  4  N.  &  M.  861;  6  C.  &  P.  381,  S.  C; 
Doe  V.  Ross,  7  M.  &  W.  102;  Mills  v.  Oddy,  6  C.  &  P.  728,  per  Parke,  B.  The 
case  of  Doe  r.  Owen,  8C.  &  P.  110,  can  no  longer  be  supported. 

^  Doe  ?'.  Clifford,  2  C.  &  Kir.  448,  per  Alderson,  B. ;  Newton  v.  Chaplin,  10 
Com.  B.  356. 

*  Jesus  Coll.  V.  Gibbs,  1  Y.  &  C,  Ex.  R.  156. 

*  R.  v.  Llanfaethly,  2  E.  &  B.  940. 
8  Doev.  Ross,  7  M.  &W.  122. 

^  Att.-Gen.  v.  Ashe,  10  Ir.  Eq.  R.,  N.  S.  300. 

(3286) 


CHAP,  v.]    WHEN  WITNESS  NOT  BOUND  TO  PRODUCE  DOCUMENT.         419 

also,  if  a  solicitor,  who  is  not  acting  under  special  instructions 
from  his  client,  declines  to  produce  an  instrument  on  the  ground 
of  privilege,  it  may  be  very  questionable  whether  the  client  must 
not  be  subpoenaed,  in  order  to  ascertain  whether  he  also  relies  on 
his  right  to  withhold  the  deed;  ^  and  this  course  will  assuredly  be 
prudent,  inasmuch  as  the  privilege  is,  in  strictness,  not  that  of  the 
solicitor,  but  that  of  the  client.  If,  indeed,  the  solicitor  can  under- 
take to  swear  that  his  client  has  instructed  him  not  to  produce  the 
instrument,  it  will  not  be  necessary  to  subpoena  the  client;  for  in 
such  a  case  the  court  would  very  properly  assume  that  the  client,  if 
called,  would  continue  to  be  of  the  same  mind." 

§  458.  Upon  principles  of  reason  and  equity,  judges  will  refuse  ^ 
to  compel  either  a  witness  or  a  party  to  a  cause  ^  to  produce  either 
his  title-deeds,*  or  any  document  the  production  of  which  may  tend 
to  criminate  him,"  or  any  document  which  he  holds  as  mortgagee^ 
or  pledgee.'  But  a  witness  will  not  be  allowed  to  resist  a  subpoena 
duces  tecum  on  the  ground  of  any  lien  ^  he  may  have  on  the  docu- 
ment called  for  as  evidence,^  unless  the  party  requiring  the  produc- 

iDoer.  Ross,  7  M.  &  W.  122;  Newton  v.  Chaplin,  10  Com.  B.  356;  In  re 
Cameron's  Coalbrook,  &c.,  Rail.  Co.,  25  Beav.  1. 

-  Phelps  V.  Prew,  3  E.  &  B.  430 

^  The  rule,  so  far  as  it  relates  to  parties,  appears  to  be  this  ;  a  plaintifif 
will  not  be  compelled  to  produce  muniments  of  title  which  he  swears  do  not, 
to  the  best  of  his  knowledge,  information,  and  belief,  contain  anything 
impeaching  his  case,  or  supporting  or  material  to  the  case  of  the  defendant. 
Minet  v.  Morgan,  8  Law  Rep.,  Ch.  Ap.  361;  42  L.  J.,  Ch.  627,  S.  C. 

*  Pickering  v.  Noyes,  1  B.  &  C.  263;  2  D.  &  R.  386,  S.  C. ;  Harris  v.  Hill, 
2  Stark.  R.  140,  per  Abbott,  C.  J.;  D.  &  R.,  N.  P.  R.  17,  S.  C. ;  R.  r.  Upper 
Boddington,  8  D.  &•  R.  726  ;  Doe  v.  Clifford,  2  C.  &  Kir.  448 ;  Egremont. 
Burial  Board  v.  Egremont  Iron  Ore  Co.,  L.  R.,  14  Ch.  D.  158,  per  Malins, 
y.-C;  49  L.  J.,  Ch.  623,  S.  C. 

5  See  Whitaker  v.  Izod,  2  Taunt.  115. 

»Doev.  Ross,  7  M.  &  W.   102,  122;  8  Dowl.  389,  S.  C,  explained   by   Ld., 
Just.  Turner   in    Hope  r.  Liddell,  24  L.  J.,  Ch.  694;  7  De  Gex,   M.  &  G.  338, 
S.  C;  Chichester  v.  Marq.  of  Donegall,  39  L.  J.,  Ch.  694,   per  Giffard,  L.   J.;. 
Costa  Rica,  Republic  of,  v.  Erlanger,  44  L.  J.,  Ch.  281. 

''  See  Ex  parte  Shaw,  Jac.  270. 

*  In  the  Courts  of  Bankruptcy,  "no  person  shall,  as  against  the  official 
receiver  or  trustee,  be  entitled  to  withhold  po.ssession  of  the  books  of  account, 
belonging  to  the  debtor,  or  to  set  up  any  lien  thereon. "  Bankruptcy  Rules, 
1883,  r.  259. 

'  Hunter  r.  Leathley   10  B.  &  C.   858;  recognised  by  Parke,  B.,  in  Ley  v. 
Barlow,  1  Ex.  R.  801;  Thompson  v.  Mosely,  5  C.  &  P.  501,  per  Ld.  Lynd- 
hurst;  Brassington  v.  Brassington,  1  Sim.  &  St.  455,  per  Leach,  V.-C. ;  Pratt 
6  LAW  OF  EVID. — V.  II.  (3287) 


420  WUEN    WITNESS    BOUND    TO    I'KODUCE    DOCUMENT.        [PART  II. 

tionbe  himself  the  person  against  whom  the  claim  of  lien  is  made.* 
If  the  witness  be  a  solicitor,  though  he  will  be  permitted,  he  will 
certainly  not  be  forced,' — except  in  some  cases  for  the  purpose  of 
identirication,^ — to  produce  any  instrument  which  he  holds  confiden- 
tially for  his  client,  and  which  his  client  has  a  right  to  keep  back;* 
but,  in  this  case,  as  has  just  been  noticed,  it  by  no  means  necessarily 
follows  that,  in  the  event  of  the  client  himself  not  being  summoned, 
secondary  evidence  will  be  admissible. 

§  459.  The  rule  exempting  witnesses  from  producing  title-deeds  I  429 
has  been  applied  to  a  will,  under  which  the  witness  claimed  as 
devisee,  though  it  was  suggested  that  this  will  extended  to  per- 
sonalty as  well  as  to  realty,  and,  therefore,  ought  to"  have  been 
deposited  in  the  Ecclesiastical  Court,  where  the  public  might  have 
had  access  to  it.^  Still,  unless  it  appears  that  the  title  of  the 
person  possessing  the  document  will  in  some  way  be  afPected  by  its 
production,  the  rule  will  not  prevail ; «  and,  therefore,  in  an  old  action 
of  ejectment,  where  the  title  of  the  lessor  of  the  plaintiff  was  dis- 
puted, the  solicitor  of  a  gentleman,  who  had  been  in  treaty  with 
him  for  the  purchase  of  the  property,  but  which  treaty  had  gone  ofP, 
was  allowed  to  produce  on  behalf  of  the  defendant  the  abstract  that 
had  been  delivered  to  his  client,  as  furnishing  secondary  evidence 

V.  Pratt,  51  L.  J.,  Ch.  838,  per  Bacon,  V.-C;  Furlong  v.  Howard,  2  Sch.  & 
Lef.  115,  per  Ld.  Eedesdale;  In  re  Cameron's  Coalbrook,  &c.,  Rail.  Co.,  25 
Beav.  1;  Hope  v.  Liddell,  7  De  Gex,  M.  &  G.  331;  24  L.  J.,  Ch.  691;  and 
20  Beav.  438,  S.  C,  overruling  Griffith  v.  Ricketts,  7  Hare,  303.  See,  also, 
Lockett  V.  Gary,  3  New  R.  405,  per  Romilly,  M.  R. ;  Ex  p.  Paine  &  Layton, 
4  Law  Rep.,  Ch.  Ap.  215;  38  L.  J.,  Ch.  305,  S.  C.  ;  Re  Toleman,  ex  p. 
Bramble,  L.  R.,  13  Ch.  D.  885. 

^  Kemp  &  King,  2  M.  &  Rob.  437,  per  Ld.  Denman;  recognised  in  Hope 
V.  Liddell,  24  L.  J.,  Ch.  693,  694;  7  De  Gex,  M.  &  G.  338,  S.  C.  See  In  re 
Capital  Fire  Ins.  Assoc,  L.  R.,  24  Ch.  D.  408,  and  cases  there  cited.  Also 
In  re  Cameron's  Coalbrook,  &c..  Rail.  Co.,  25  Beav.  4,  per  Romilly,  M.  E. ; 
Vale  V.  Oppert,  10  Law  Rep.,  Ch.  Ap.  340;  44  L.  J.,  Ch.  579,  S.  C.  But  see 
Fowler  j\  Fowler,  50  L.  J.,  Ch.  686,  per  Kay,  J.,  et  qu.  See  Re  Martin, 
13  L.  R.  Ir.  312. 

2  Hibberd  v.  Knight,  2  Ex.  R.  11,  explaining  IMarston  v.  Downes,  6  C.  &  P. 
381;  1  A.  &E.  31.  S.  C. 

=»  Phelps  V.  Prew,  3  E.  &  B.  430. 

*  Harris  r.  Hill,  3  Stark.  R.  140;  Volant  v.  Soyer,  13  Com.  B.  231  ;  Doe  v. 
James,  2  M.  &  Rob.  47,  per  Ld.  Denman;  Ditcher  v.  Kenrick,  1  C.  &  P.  161. 
See  Doe  v.  Langdon,  12  Q.  B.  711. 

^  Doe  V.  James,  2  M.  &  Rob.  48,  per  Ld.  Denman. 

«  Lee  V.  Merest,  39  L.  J.,  Ec.  C.  53. 

(3288) 


CHAP,  v.]    AVIIEN  WITNESS  NOT  BOUND  TO  PKODUCE  D0CU3IENT.         421 

of    the    contents  of    the    deeds    relating   to    property,  "which    the 
lessor  of  the  plaintiff,  after  notice,  had  refused  to  produce.' 


§  460.  Again,  the  mere  circumstance,  that  the  production  of  the  ^  "130 
document  may  render  the  witness  liable  to  a  civil  action,  does  not 
come  within  the  protection  of  the  rule.  Thus,  in  an  action  of  eject- 
ment, in  which  the  lessor  of  the  plaintiff  claimed  as  devisee  in 
remainder,  and  the  defendant  held  under  an  invalid  lease  made  by 
the  late  tenant  for  life,  a  witness,  who  was  an  executor  and  legatee 
of  the  late  tenant  for  life,  was  compelled  to  produce  his  testator's 
rent-book,  for  the  purpose  of  enabling  the  lessor  of  the  plaintiff  to 
identify  the  lands  in  question  with  the  lands  originally  devised, 
though  the  witness,  as  executor,  was  bound  to  indemnify  the  de- 
fendant from  all  loss  he  might  sustain  from  an  adverse  verdict, 
under  a  covenant  contained  in  the  lease  granted  by  the  late  tenant 
for  life.^  Where  a  witness,  who  was  steward  of  a  borough,  and 
attorney  for  the  lord,  declined  to  produce  certain  old  precepts,  books 
of  presentment,  and  a  case,  relative  to  his  office,  on  which  the 
opinion  of  counsel  had  been  taken  by  a  former  steward,  saying  that 
he  held  them  as  attorney  for  the  lord,  and  that  their  production 
would  pi'ejudice  his  client's  interest.  Lord  Denman  decided  that  he 
was  bound  to  produce  the  precepts  and  presentments,  they  being 
public  documents,  but  that  the  case  and  opinion  might  be  with- 
held.' 

§  461.*  Fifthly,  in  consequence  of  the  strong  presumption,  which  ?  431 
arises  from  the  undisturbed  exercise  of  a  public  office,  that  the 
appointment  to  it  is  valid,  the  law  does  not  in  general  require  that 
the  tiTiften  appointments  of  public  officers  should  be  produced,  but 
it  will  be  sufficient  to  show  that  such  officers  have  acted  in  an  official 
capacity.^ 

§  462.®  A  sixth  relaxation  of  the  rule  demanding  primary  proof    g  432 

»  Doe  V.  Langdon,  12  Q.  B,  711. 

2  Doe  V.  Date,  3'  Q.  B.  609.  '  R.  v.  Woodley,  1  M.  &  Rob.  390. 

*  Gr.  Ev.  §  92,  in  great  part. 

*  See  ante,  ?   171.      See,   also,  Brewster  v.  Sewell,  3  B.  &  A.  302,  per  Hol- 
royd,  J.  ^  Gr.  Ev.  §  93,  in  great  part. 

(3289)  ' 


422        WHEN  WITNESS  NOT  BOUND  TO  PRODUCE  DOCUMENT,      [PART  II. 

has  been  admitted,  where  the  evidence  required  is  the  result  of 
voluminous  facts,  or  of  the  inspection  of  many  books  and  papers,  the 
examination  of  which  could  not  conveniently  take  place  in  court.' 
Thus,  if  bills  of  exchange  have  been  drawn  between  particular 
parties  in  one  invariable  mode,  this  may  be  proved  by  the  testimony 
of  a  witness  conversant  with  their  habits  of  business,  and  speaking 
generally  of  the  fact,  without  producing  the  bills  ;  though,  if  the 
mode  of  dealing  has  not  been  uniform,  the  case  does  not  fall  within 
this  exception,  but  is  governed  by  the  rule  requiring  the  production 
of  the  writings."  So,  a  witness,  who  has  inspected  the  accounts  of 
the  parties,  though  he  may  not  give  evidence  of  their  particular 
contents,  will  be  allowed  to  speak  to  the  general  balance  without 
producing  the  accounts.^  And,  where  the  question  turns  upon  the 
solvency  of  a  party  at  a  particular  time,  the  general  result  of  an 
examination  of  his  books  and  securities  may  be  stated  in  like 
manner.*  This  exception,  however,  will  not  enable  a  witness  to 
state  the  general  contents  of  a  number  of  letters  received  by  him 
from  one  of  the  parties  in  the  cause,  though  such  letters  have  since 
been  destroyed,  if  the  object  of  the  examination  be  to  elicit  from 
the  witness  the  impression  which  they  produced  on  his  mind,  with 
reference  to  the  degree  of  fi'iendship  subsisting  between  the  writer 
and  a  third  party.^  The  distinction  between  this  and  the  preceding 
cases  is  obvious  ;  since  in  those,  the  fact  in  question  was  one,  the 
truth  of  which  simply  depended  on  the  honesty  of  the  witness, 
whereas  here,  not  only  his  honesty,  but  his  taste  and  feelings  were 
involved,  and  he  might,  from  perusing  the  letters,  conscientiously 
draw  a  very  different  inference  as  to  their  legitimate  construction 
from  that  which  would  be  drawn  by  an  unbiased  jury. 

'  Ph.  Ev.  433.  The  rules  of  pleading  have,  for  a  similar  reason,  been 
made  to  yield  to  public  conveuience  in  the  administration  of  justice,  and  a 
general  allegation  is  frequently  allowed,  "when  the  matters  to  be  pleaded 
tend  to  infiniteness  and  multiplicity  whereby  the  rolls  shall  be  incumbered 
with  the  length  thereof"  Mints  v.  Bethil,  Cro.  Eliz.  749,  Steph.  PI.  392— 
396.  See  Rules  of  Sup.  Ct.  1883,  Ord.  XIX.,  R.  2;  Ord.  LXV.,  R.  27,  subs.  20. 
The  courts  admit  the  same  exception  in  regard  to  parties  to  actions,  where 
they  are  numerous,  on  the  like  grounds  of  convenience ;  Ord.  XVI.,  R.  9. 

■''  Spencer  v.  Billing,  3  Camp.  310,  per  Ld.  Ellenborough. 

*  Roberts  v.  Doxon,  Pea.  R.  83,  per  Ld.  Kenyon.  But  see  Johnson  v. 
Kershaw,  1  De  Gex  &  Sm.  260,  where  this  course  was  not  allowed  by  Knight 
Bruce,  V.-C.  *  Meyer  v.  Sefton,  2  Stark.  R.  274,  per  Holroyd,  J. 

5  Topham  v.  M'Gregor,  1  C.  &  Kir.  320,  per  Rolfe,  B.  See  Taylor  v. 
Carpenter,  2  Woodb.  &  M.  5,  6, 

(3290) 


CHAP,  v.]    SECONDARY  EVIDENCE  OF  ORAL  TESTIMONY.         423 

§  463.  Secondary  evidence  is  admissible  in  the  examination  of  a  ^  433 
witness  on  the  voii^e  dire,  and  in  preliminary  inquiries  of  the  same 
nature.  But  as  this  rule,  owing  to  the  modern  improvements  in 
the  law  of  evidence  on  the  subject  of  the  competency  of  witnesses, 
has  now  become  practically  inoperative,  further  reference  to  it  here 
is  deemed  unnecessary.^ 


§  464.  Passing  now  to  the  consideration  of  the  circumstances,  i  434 
under  which  secondary  evidence  of  oral  testimony  will  be  received, 
and  bearing  in  mind  the  broad  proposition  before  stated,Hhat  such 
proof  is  only  admissible  where  the  production  of  primary  evidence 
is  out  of  the  party's  power,  it  maybe  advanced  as  a  general  rule  of 
law,  that  where  a  witness  has  given  his  testimony  under  oath  in  a 
judicial  proceeding,  in  which  the  adverse  litigant  had  the  power  to 
cross-examine,  the  testimony  so  given,  will,  if  the  witness  himself 
cannot  be  called,  be  admitted  in  any  subsequent  suit  between  the 
same  parties,  or  those  claiming  under  them,  provided  it  relate  to 
the  same  subject,  or  substantially  involve  the  same  material 
questions.^ 

§  465.  In  discussing  the  effect  and  extent  of  this  rule,  which  is  ^ 
now  recognised  by  all  courts  of  justice,^  it  seems  almost  needless  to 
observe,  that,  in  order  to  render  admissible  secondary  evidence  of 
the  testimony  of  a  witness,  it  must  be  proved  "that  the  witness  was 
duly  sworn  in  some  judicial  proceeding,  to  the  authority  of  which 
the  party,  against  whom  his  testimony  is  offered,  was  legally  bound 
to  submit,  and  in  which  he  might  have  exercised  the  right  of  cross- 
examination;   for,  if  this  were  not  the  case,  the  preposterous  con- 


^  See  1st  Ed.  of  this  work,  ^  342;  and  cases  cited  in  this  Ed.,  post,  ^  1393, 
last  note.  ^  Ante,  |  428. 

3  B.  N.  P.  239—243  ;  IMay.  of  Doncaster  v.  Day,  3  Taunt.  262,  Strutt  v. 
Boviugdon,  5  Esp.  56,  per  Ld.  Ellenborough ;  R.  v.  Jollilfe,  4  T.  R.  290,  per 
Ld.  Kenyon;  Pyke  v.  Crouch,  1  Ld.  Ray.  730,  5th  Res.;  Wright  v.  Doe  d. 
Tatham,  1  A.  &  E.  3;  Glass  v.  Beach,  5  Vern.  172;  Lightner  v.  Wike,  4  Serg. 
&  R.  203. 

*  See  Lawrence  v.  Maule,  4  Drew.  472,  479,  480,  per  Kindersley,  V. -C.  The 
rule  has  been  extended  to  answers,  Parker  v.  M'Kenna,  43  L.  J.,  Ch.  802,  and 
to  affidavits,  Dunne  v.  English,  18  Law  Rep.,  Eq.  524.  See  Meyrick  v.  James, 
46  L.  J.,  Ch.  579. 

(3291) 


424  SECONDARY  EVIDENCE  OF  ORAL  TESTIxMONY.  [pART  II. 

sequence  would  follow,  that  secondary  evidence  of  testimony  might 
be  received  under  circumstances  that  would  exclude  the  testimony 
itself.  If,  thei-efore,  it  should  appear  that  depositions  were  taken, 
either  by  parties  not  legally  authorised  to  take  them,'  or  without 
the  sanction  of  an  oath  or  afl&i'mation,  or  in  the  absence  of  the 
party  against  whom  they  are  offered,'  when,  as  in  most  criminal 
investigations,^  his  presence  was  requisite,  they  cannot  be  received.* 


§  4GG.  But  although  the  party,  against  whom  depositions  are  g  43r) 
offered  in  evidence,  must  have  had  an  opportunity  of  being  present 
at  the  examination,  and  of  cross-examining  the  witness,^ — and 
therefore,  if  a  commission  be  executed  without  any  notice,  or  with- 
out a  sufficient  notice,**  being  given  to  the  opposite  party,  to  enable 
him,  if  ho  pleases,  to  put  cross-interrogatories,  the  depositions  will 
be  rejected,' — yet,  it  is  by  no  means  requisite  that  he  should  exercise 
that  power;  and  if  notice  has  been  given  to  him  of  the  time  and 
place  of  the  examination,  and  he  neither  intimates  any  wish  to 
cross-examine,  nor  applies  to  the  court  to  enlarge  the  time  for  that 
purpose,  it  will  be  presumed  that  he  has  acted  advisedly,  and  the 
depositions  will  be  received.^  So,  where  a  defendant,  after  joining 
the  plaintiff  in  obtaining  a  commission  to  examine  witnesses  upon 
interrogatories,  gave  notice  .that  he  declined  to  proceed  with  the  ex- 
amination; whereupon  the  plaintiff"  sent  him  word  that  he  should  » 
apply  for  a  commiaeion  ex  parte,  which  he  accordingly  did:  the 
court  held  that  the  examinations  taken  under  this  order  were  ad- 
missible in  evidence,  although  the  defendant  had  received  no  notice 
of  the  time  and  place  of  taking  them." 

1  12  Vin.  Ab.,  Ev.  A.  b.  31;  B.  N.  P.  241. 

^  The  admis.sibility  of  depositions  taken  before  a  coroner,  in  the  absence  of 
the  accused,  will  be  discussed  hereafter.     See  post,  §  494. 
'  See  post,  ?  479. 

*  In  R.  V.  Eriswell,  3  T.  R.  721,  Ld.  Kenyon  laid  down  that  "the  evidence 
should  be  given  under  the  sanction  of  an  oath  legally  administered,  and  in  a 
judicial  proceeding  depending  between  the  parties  affected  by  it,  or  those  who 
stand  in  privity  of  estate  or  interest  with  them." 

*  Att.-Gen.  v.  Davison,  M'Clel.  &  Y.  160. 

«  Fitzgerald  v.  Fitzgerald,  3  Swab.  «&Trist.  397. 

"  Steinkeller  v.  Newton,  1  Scott,  N.   R.   148;   8  Dowl.  579;  9  C.  &  P.  313, 
S.  C. 
^  Cazenove  v.  Vaughan,  1  M.  &  Sel.  4. 
8  M'Combie  v.  Anton,  6  M.  &  Gr.  27. 

(3292) 


CHAP.  V.  ]  TESTIMONY  GIVEN  IN  FORMER  JUDICIAL  PROCEEDING.  425 

§  467.'  The  admissibility  of  this  evidence  seems  to  turn,  rather  ^  436 
on  the  right  to  cross  examine,  than  upon  the  precise  identity,  either 
of  the  parties  or  of  the  points  in  issue,  in  the  two  proceedings. 
Therefore,  where  a  witness  testified  in  a  suit,  wherein  A.  and  several 
others  were  plaintiffs  and  B.  defendant,  his  testimony  was,  after  his 
death,  held  admissible  in  a  subsequent  action  relating  to  the  same 
matter,  brought  by  B.  against  A.  alone."  And  although  the  two 
trials  be  not  between  the  same  parties,  yet,  if  the  second  trial  is 
between  those  who  represent  the  former  parties,  and  claim  through 
them  by  some  title  acquired  subsequently  to  the  first  trial,  the  evi- 
dence is  admissible.^  Again,  if  in  a  dispute  respecting  lands  any 
fact  comes  directly  in  issue,  the  testimony  given  to  that  fact  is  ad- 
missible to  prove  the  same  point  in  another  action  between  the  same 
parties  or  their  privies,  though  the  last  suit  relate  to  other  lands.* 
So,  in  criminal  cases,  a  deposition  taken  on  a  charge  either  of  as- 
sault and  robbery,  or  of  stabbing,  or  of  doing  grievous  bodily  harm, 
can,  after  the  death  of  the  witness,  be  read  upon  a  trial  for  murder, 
where  the  two  charges  relate  to  the  same  transaction;^  and,  indeed, 
if  this  were  not  the  law,  the  depositions  of  the  deceased  would,  in 
all  cases  of  homicide,  be  most  improperly  excluded.'^  In  one  case,^ 
where  a  prisoner,  who  had  been  summarily  convicted  of  an  assault, 
was,  in  consequence  of  the  death  of  the  party  struck,  subsequently 
indicted  for  murder,  the  convicting  magistrate  was  permitted  to 
state  what  the  deceased  had  sworn  in  the  prisoner's  presence,  the 
examination  not  having  been  reduced  in  writing;  but  the  learned 
judge  appears  to  have  received  the  evidence,  not  as  proving  the 
facts  stated,  but  as  producing  an  answer  from  the  prisoner.  So,  on 
another  indictment  for  murder,  a  deposition  of  the  deceased  taken 
on  a  prior  charge  of  larceny  against  the  accused  was  read,  but  this 
course  was  allowed,  not  as  furnishing  any  evidence  of  the  facts  de- 


1  Gr.  Ev.  I  1G4,  in  part.  ^  Wright  v.  Doe  d.  Tatham,  1  A.  &  E.  .3. 

^  Com.  Dig. ,  Ev.  A.  5,  explained  by  Littledale,  J. ,  in  Doe  v.  Derby,  1  A.  & 
E.  790;  Doe  v.  Powell,  3  C.  &  Kir.  323. 

*Doe  V.  Foster,  1  A.  &  E.  791,  n.  b,  per  Alderson,  B.;  B.  N.  P.  232; 
Llanover  v.  Homfray,  L.  E.,  19  Ch.  D.  224. 

*  K.  V.  Smitli,  R.  &  R.  339;  2  Stark.  R.  208,  S.  C;  R.  v.  Lee,  4  Post.  & 
Fin.  63,  per  Pollock,  C.  B. ;  R.  v.  Dilmore,  6  Cox,  52,  per  Wightman,  J. ;  R. 
V.  Beeston,  24  L.  J.,  M.  C.  5;  Pearee  &  D.  405,  S.  C;  R.  v.  Williams,  12 
Cox,  101.  «  2  Stark.  R.  212,  note  by  the  reporter. 

'  R.  V.  Edmunds,  G  C.  &  P.  164,  per  Tindal,  C.  J. 

(3293) 


426  SECONDARY  EVIDENCE  OF  ORAL  TESTIMONY.  [PART  II. 

posed,  but  simply  as  affording  a  motive  for  revenge  on  the  part  of 
the  prisoner.' 

§  4G8.  If  the  point  in  issue,  though  very  similar,  was  so  far  §  437 
different  in  the  two  proceedings,  that  the  witness,  who  was  called 
to  prove  or  disprove  the  issue  in  the  former,  need  not  have  been 
fulhj  cross-examined  in  regard  to  the  matters  in  controversy  in 
the  latter,  his  deposition,  if  tendered  on  the  second  trial,  will  be 
excluded;  and  on  this  ground  it  has  been  held — though,  perhaps, 
with  questionable  propriety — that  a  deposition  taken  on  a  charge 
of  assault  could  not  afterwards  be  received  on  an  indictment  for 
wounding.^  Again, ^  it  has  been  held  in  America,  that  where  the 
issue  in  one  action  had  been  upon  a  common  or  free  fishery,  and 
that  in  another  action  was  upon  a  several  fishery,  evidence  of  what 
a  witness,  since  deceased,  had  sworn  upon  the  former  trial,  was 
inadmissible.* 

§  4G9.  In  stating  that  this  rule  mainly  depends  on  the  right  of  §  43  ^ 
cross  examination,  care  must  be  taken  to  guard  against  the  error 
of  imagining  that,  whenever  a  party  has  had  the  right  of  cross- 
examining  a  witness,  he  will  be  liable  to  have  the  statement  of 
that  witness  adduced  against  him  in  any  subsequent  action.  This 
will  be  so  only  in  the  event  of  his  opponent  being  the  same  in  both 
suits;''  because,  the  right  to  use  evidence,  other  than  admissions, 
being  co-extensive  with    the    liability  to   be   bound   thereby,   the  * 

adversary  in  the  second  suit  has  no  power  to  offer  evidence  in  his 
own  favour,  which,  had  it  been  tendered  against  him,  would  have 
been  clearly  inadmissible.** 

§  470.  It  has  already  been  stated  that  secondary  evidence  of  oral    I  439 
testimony  cannot  be  received  so  long  as  the  witness  himself  can  be 
called;   but  an  attempt  was,  some  years  ago,  made  in   equity  to 
engraft  an  exception  on  this  wise  rule,  whenever  depositions  have 
been  taken  against  a  party  in  one  suit,  who  is  also  a  party  to  a 


1  E.  V.  Buckley,  13  Cox,  293,  per  Lush,  J. 

^  R.  V.  Ledbetter,  3  C.  &  Kir.   108;  commented  upon  in  R.  v.  Beeston,  24 
L.  J.,  M.  C.  5.  3  Gr.  Ev.  I  164. 

*  Melvin  v.  Whiting,  7  Pick.  79;  Jackson  v.  Winchester,  4  Dall.  206. 

5  Morgan  v.  Nicholl,  36  L.  J.,  C.  P.  86;  2  Law  Rep.,  C.  P.  117,  S.  C. 

6  Doe  V.  Derby,  1  A.  &  E.  783,  786. 

(3294) 


CHAP,  v.]        SECOND.  EV.  INAD3IIS.  IF  WITNESS  CAN  BE  CALLED.       427 

second  suit,  wherein  substantially  the  same  questions  arise.  The 
case  in  which  this  point  was  mooted  was  that  of  Blagrave  v. 
Blagrave.'  There,  a  person  was  tenant  for  life  of  certain  real 
and  personal  estate.  Two  suits  were  instituted  against  him  in 
respect  of  alleged  mismanagement  of  the  property,  the  one  being 
commenced  by  the  tenant  for  life  in  remainder,  and  referring 
only  to  the  real  estate,  the  other  being  commenced  by  the  first 
tenant  in  tail,  and  embracing  both  the  real  and  the  personal  estate. 
The  objects  sought  in  each  suit,  though  not  entirely  identical, 
were  to  a  great  extent  the  same.  Under  these  circumstances  it 
was  proposed,  on  the  authority  of  Nevil  v.  Johnson,''  Barton  v. 
Palmes,^  Byrne  v.  Frere,*  and  particularly,  the  City  of  London  v. 
Perkins,^  to  read  as  against  the  defendant  in  the  second  suit  the 
depositions  that  had  been  taken  against  him  in  the  first,  without 
any  proof  that  the  witnesses  were  dead,  or  otherwise  incapable  of 
being  examined.  Vice- Chancellor  Knight  Bruce,  however,  .very 
properly  held  that  this  course  could  not  be  pursued  ;  and  his  de- 
cision would  not  have  deserved  any  notice,  had  it  not  been  that 
his  Honour  appeared  to  recognise  the  case  of  the  City  of  London  v. 
Perkins,  as  an  authority  to  a  certain  extent  for  the  doctrine  pro- 
pounded by  the  plaintiff's  counsel.  Now,  it  is  submitted  that  this 
is  a  mistake. 

§  471.  The  real  facts  were  these.  The  City  of  London,  having  g  439 
filed  a  bill  against  Messrs.  Perkins  to  recover  certain  tonnage  dues 
under  an  alleged  custom,  claimed  to  read,  as  evidence  of  reputation 
with  respect  to  the  custom,  certain  depositions  which  had  been 
taken  by  them  in  two  former  suits  for  the  recovery  of  the  same 
species  of  tonnage  against  two  other  defendants.  The  Court  of 
Exchequer  rejected  this  proof  on  the  ground  that  the  deaths  of  the 
witnesses  were  not  shown  by  "the  depositions  taken  in  the  cause;" 
and  they  refused  to  allow  the  plaintiffs  to  prove  by  viva  voce  testi- 
mony or  by  affidavit  that  the  witnesses  were  in  fact  dead.  The 
plaintiffs  appealed,  and  prayed,  among  other  things,  that  the  order 
of  the  court  below  should  be  reversed,  and  that  they  might  be  at 
liberty  to  read  the  depositions;  whereupon,  the  House  of  Lords, 


1  1  De  Gex  &  Sm.  252  ^  2  Vern.  247.  ^  Tree,  in  Ch.  233. 

*  2  Moll.  157.  5  3  Br.  P.  C.  602. 

(3295) 


428       WHEN  A  WITNESS  IS  INCAPABLE  OF  BEING  CALLED.        [PART  II. 

without  granting  or  alluding  to  the  last  paragraph  of  the  prayer, 
gave  judgment  that  the  order  be  reversed.'  It  is  obvious,  therefore, 
that  this  case  does  not  decide  that  depositions  can  in  any  event  be 
read  in  evidence,  where  the  witnesses  are  capable  of  being  called. 
Neither  can  Such  a  doctrine  be  supported  by  any  of  the  three  other 
cases  cited  in  Blagrave  v.  Blagrave."  In  Byrne  v.  Frere,^  it  is 
clear  that  the  witnesses  were  dead,  and  there  is  nothing  to  show 
that  they  were  alive,  either  in  Nevil  v.  Johnson,^  or  in  Barton  v. 
Palmes.^ 

§  471a.  Although  the  case  of  Blagrave  v.  Blagrave  was  clearly  a 
right  decisian,  the  Rules  of  the  Supreme  Court,  1883,  have  so  far 
relaxed  the  law  there  recognised,  as  to  provide,  by  Ord.  XXXVII., 
R.  25,  that  "  all  evidence  taken  at  the  hearing  or  trial  of  any  cause 
or  matter  may  be  used  in  any  subsequent  proceedings  in  the  saiyie 
cause  or  matter.^^ 

§  472.  Returning  now  to  the  rule  which  rejects  secondary  |  440 
evidence  of  oral  testimony  so  long  as  the  witness  can  himself  be 
called,  it  should  be  observed,  that  the  common  law  regards  a 
witness  as  incapable  of  being  called, — 1,  When  he  is  dead;  2, 
When  he  is  out  of  the  jurisdiction  of  the  court,  or  possibly, 
when  he  cannot  be  found  after  diligent  inquiry;  3,  When  he  is 
either  insane,  or  seriously  sick;^  and  4,  AVhen  he  is  kept  out 
of  the  way  by  the  contrivance  of  the  opposite  party.  In  noticing 
the  authoi'ities  which  support  these  propositions,  no  case  need  be 
cited  to  establish  what  is  admitted  on  all  hands,  that  if  the  witness 
be  proved  to  be  dead,  secondary  evidence  of  his  statement  on 
oath  in  a  former  trial  between  the  same  parties  will  be  received.' 
The  court,  however, — unless  some  account  of  the  death  of  a 
witness  be  given,  or  at  least  some  evidence  be  furnished  show- 
ing that  proper  inquiries  have  been  made,  and  that  no  tidings  can 
be  heard  of  him, — will  not  presume  his  death,  so  as  to  admit  his 


1  See  and  compare,  3  Br.  P.  C.  602,  and  24  Lords'  J.  448,  under  date  28th 
Jan.,  1734.     See,  also,  Carrington  v.  Cornock,  2  Sim.  567. 

2  1  De  Gex  &  Sm.  252.  ^  2  Moll.  157.  *  2  Vern.  447. 
*  Prec.  in  Ch.  233. 

«  See  post,  §  506,  citing  Rules  of  Sup.  Ct.,  1883,  Ord.  XXXVII.,  R.  18. 
'  Pyke  v.  Crouch,  1  Ld.  Ray.  730,  5th  Res. 

(3296) 


CHAP  v.]  WHEN  WITNESS  OUT  OF  JURISDICTION.  429 

depositions,  though  they  were  taken  as  much  as  fifty  years  before 
the  trial.' 


§  473.  The  ground  for  admitting  secondary  evidence  in  civil  ^  '^'^^ 
proceedings  seems  equally  clear,  where  it  is  proved  that  the 
witness  is  actually  residing  in  some  place  beyond  the  jurisdiction 
of  the  court ;"  but  questions  have  occasionally  arisen  respecting 
the  amount  and  nature  of  the  proof  required  to  establish  this 
fact.  Thus,  where  a  naval  captain  had  been  examined  on  interro 
gatories  by  consent,  on  account  of  his  expected  absence.  Sir  James 
Mansfield  held  that  it  was  not  absolutely  necessary  that  he  should 
be  on  his  voyage  when  the  trial  came  on.  If  the  ship  had  sailed, 
though  it  had  put  back,  or  if  the  witness  had  gone  on  board,  and 
was  ready  to  sail,  though  prevented  by  contrary  winds,  that  would 
be  sufficient.^  The  same  doctrine  has  prevailed  in  another  case, 
where  the  signature  of  an  attesting  witness  was  allowed  to  be 
proved,  it  appearing  that  he  had  sailed  for  Spain,  had  been  driven 
back  by  stress  of  weather,  and  six  days  before  the  trial,  was  at 
Falmouth,  expecting  to  sail  again  immediately*  In  a  third  case 
where  it  is  was  sworn  that  the  witness  was  a  seafaring  man,  and 
some  six  months  before  the  trial  had  belonged  to  a  ship  lying  in 
the  Thames,  Lord  Ellenborough,  in  rejecting  the  evidence  as  too 
vague,  was  disposed  to  admit  the  depositions,  if  it  could  be  further 
shown  that  any  efforts  had  been  recently  made  to  find  him.*  This 
case  suggests  the  propriety  of  noticing  an  old  decision  of  the 
time  of  James  the  First,®  in  which  it  was  expressly  laid  down 
that,  if  a  party  cannot  find  a  witness,  then  he  is,  as  it  were,  dead 
to  him;  and  his  depositions  in  a  cause  betwixt  the  same  parties 
may  be  read,  provided  the  party  make  oath  that  he  endeavoured 
to  find  him,  but  could  neither  see  him  nor  hear  of  him.  In  no 
modern  case  has  precisely  the  same  point  being  ruled,  but  as  it  has 
frequently  been  held  that  proof  of  inability  to  find  an  attesting 


1  Benson  r.  Olive,  2  Str.  920.     See  ante,  I  199. 
""  Fry  V.  Wood,  1  Atk.  445. 

*  Fonsick  v.  Agar,  6  Esp.  92.     But  see  Carruthers  r.   Graham,  C.  &  Marsh. 
5,  cited  post,  ?,  .517. 

*  Ward  r.  Wells.  1  Taunt.  461.     See  Varicas  v.  French,  2  C.  &  Kir.  1008. 

*  Falconer  v.  Hanson,  1  Camp.  171.  ®  Godb,  326. 

(3297) 


430     WHEN  tviTN.  CANNOT  BE  FOUND — ANS.  TO  INQUIRIES.      [PAET  II. 

witness  will  let  in  evidence  of  his  handwriting/  these  analogous 
decisions  would  seem  in  some  degree  to  support  the  correctness  of 
the  old  authority,  at  least  so  far  as  relates  to  civil  causes. 

§  474.  In  criminal  proceedings  a  similar  latitude  is  not  allow-  ?  442 
able  at  common  law,  and  the  deposition  of  a  witness,  whether 
taken  before  a  magistrate  or  a  coroner,  will  not  be  rendered 
admissible,  on  mere  proof  that  the  witness  himself  cannot  be 
found  after  diligent  search.^  Neither  will  it  be  received,  though 
satisfactory  proof  be  given  that  the  witness  was  not  absent  from 
any  intention  to  defeat  justice,  but  that,  being  a  foreigner,  he  had, 
since  the  prisoner  was  committed  for  trial,  returned  to  his  own 
country,  and  was  at  the  time  of  the  trial  resident  abroad.^  This 
kind  of  evidence  has  also  been  rejected  in  America,  both  where 
the  witness  could  not  be  found  within  the  jurisdiction,  but  was 
reported  to  have  gone  to  an  adjoining  State,*  and  where  he  was 
proved  to  have  left  the  State,  after  being  summoned  to  attend  at 
the  trial.^ 

§  475.  How  far  ansivers  to  inquiries  respecting  the  witness  are  §  443 
admissible  to  prove  that  he  cannot  be  found,  is  not  very  clearly 
defined  by  the  decisions.  That  such  answers  will  be  rejected 
as  hearsay,  if  tendered  in  proof  of  the  fact  that  the  witness  is 
abroad  is  beyond  all  doubt,^  but  where  the  question  is  simply 
whether  a  diligent  and  unsuccessful  search  has  been  made  for  the 
witness,  it  would  seem,  both  on  principle  and  authority,  that 
the  answers  should  be  received,  as  forming  a  prominent  part  of 
the  very  point  to  be  ascertained.'     In  order  to  show  that  inquiries 

»  Kay  V.  Brookman,  3  C.  &  P.  555;  Cunliffe  v.  Sefton,  2  East,  183;  Crosby 
V.  Percy,  1  Taunt.  364;  Ld.  Falmon.."h  v.  Roberts,  9  M.  &  W.  469;  Parker  v. 
Hoskins,  2  Taunt.  223;  Burt  v.  Walker,  4  B.  &  A.  697;  Spooner  v.  Payne, 
4  Com.  B.  328. 

^  Ld.  Morley's  case,  Kel.  55,  6th  Res.;  6  How.  St.  Tr.  771,  S.  C;  R.  v. 
Scaife,  17  Q.  B.  242—244;  2  Den.  281,  S.  C. 

''  R.  V.  Austen,  Pearce  &  D.  612;  7  Cox,  55,  S.  C;  R.  v.  Hagan,  8  C.  &  P. 
167.     These  .cases  overrule  the  law  as  laid  down  in  B.  N.  P.  242. 

"  Wilbur  V.  Selden,  6  Cowen,  162.  ^  Finn's  case,  5  Rand.  701. 

®  Robinson  v.  Markis,  2  M.  &  Rob.  375,  per  Ld.  Abinger;  Doe  v.  Powell, 
7  C.  &  P.  617,  per  id. ;  po.st,  ^  517. 

'  Wyatt  V.  Bateman,  7  C.  &  P.  586,  per  Coleridge,  J.;  Burt  v.  Walker,  4  B. 
&  A.  697;  Austin  v.  Rumsey,  2  C.  &  Kir.  736,  per  Erie,  J. 

(3298) 


Chap,  v.]  when  WITNESS  INSANE  OR  SICK.  431 

have  been  duly  made  at  the  house  of  the  witness,  his  declarations 
as  to  where  he  lived  cannot  be  received; '  neither  will  his  state- 
ment in  the  deposition  itself,  that  he  is  about  to  go  abroad,  render 
it  unnecessary  to  prove  that  he  has  put  his  purpose  in  execution.^ 

§  476.  If  the  witness  be  proved  at  the  trial  to  be  insane,  his  §  444 
deposition  will  be  admissible,^  in  like  manner  as  if  he  were  dead;* 
and  the  same  rule  is  stated  to  prevail,  though  the  insanity  be  only 
of  a  temporary  character.^  This,  however,  appears  to  be  carrying 
the  doctrine  beyond  its  legitimate  extent;  for  since  the  casual  ill- 
ness of  a  witness  will  not, — as  shown  in  the  next  section, — warrant 
the  reading  of  his  former  testimony,  at  least  in  a  civil  suit,  but 
will  only  furnish  good  ground  for  moving  to  postpone  the  trial,  the 
same  rule  should  surely  prevail  in  the  event  of  a  witness  being 
afflicted  with  temporary  madness.  No  sensible  distinction  can  be 
drawn  between  the  two  cases.  Where  depositions  are  tendered 
on  the  ground  of  the  witness  being  insane,  it  may  sometimes 
be  advisable  to  show  that  his  intellects  were  sound  at  the  time 
of  his  previous  examination;  and  this  course  may  even  be  neces- 
sary, if  such  examination  were  had  but  a  short  time  before  the 
trial.*^ 

§  477.  It  is  somewhat  difficult  to  discover  from  the  authorities  §  445 
what  degree  of  illness  must  be  proved  in  order  to  let  in  depositions.' 
In  an  old  case,  where  a  witness  on  his  journey  to  the  place  of  trial 
was  taken  so  ill  as  to  be  unable  to  proceed,  his  deposition  was 
allowed  to  be  read;  ^  but  too  much  weight  must  not  be  given  to  this 
decision,  since,  if  the  course  there  adopted  were  ordinarily  allowed, 
there  would  be  very  pudden  indispositions  and  recoveries."  The 
rule  laid  down  by  Lord  Ellenborough,  that  where  a  witness  is  taken 

1  Doe  V.  Powell,  7  C.  &  P.  617. 

^  Proctor  V.  Lainson,  7  C.  &  P.  631,  per  Ld.  Abinger. 

^  As  to  depositions  taken  by  committing  justices,  see  post,  §  479. 

*  E.  V.  Eriswell,  3  T.  R.  720,  721,  per  Ashhurst,  J.,  and  Ld.  Kenyon. 

^  R.  V.  Marshall,  C.  &  Marsh.   147,  per  Ludlow,   S.,   after  consulting  Colt- 
man,  J. 

«  R.  V.  Wall,  per  Park,  J.,  cited  2  Russ.  C.  &  M.  890. 

'  See  R.  V.  Bull,  12  Cox,   31.     See  Rules  of  Sup.  Ct.,  1883,  Ord.  XXXVIL, 
R.  18,  cited  post,  |  506.  8  Luttrell  v.  Reynell,  1  Mod.  284. 

^  Harrison  v.  Blades,  3  Camp.  458,  per  Ld.  Ellenborough;  Jones  v.  Brewer, 
4  Taunt.  47,  per  Heath,  J. 

(3299) 


432    POSTPONEMENT  OF  TRIAL WITN.  KEPT  OVT  OF  THE  WAY.   [PAET  II. 

ill,  the  party  requiring  his  testimony  should  move  to  put  off  the 
trial,  is  certainly  less  ojoen  to  objection  and  abuse.'  In  the  cri- 
minal courts,  this  practice  has  long  prevailed,  and  it  has  there 
been  expressly  decided,  that  the  depositions  of  a  woman,  who  was 
so  near  her  confinement  as  to  be  unable  to  attend  a  trial,  could  not 
be  received."  If,  however  from  the  natiu-e  of  the  illness  or  other 
infirmity,  no  reasonable  hope  remains  that  the  witness  will  be  able 
to  appear  in  court  on  any  future  occasion,  his  deposition  is  cer- 
tainly admissible  in  criminal,^  as  it  is  in  civil,*  proceedings.  Where, 
upon  an  issue  being  directed  out  of  the  old  Court  of  Chancery,  it 
appeared  that  a  witness,  who  had  been  examined  in  the  cause  as  to 
the  handwriting  of  certain  documents,  had  since  become  blind,  the 
court  matle  an  order  that  his  depositions  should  be  read  at  thetrial.^ 

§  478.  The  proposition  that,  if  a  witness  be  kept  out  of  the  way  ^  44(3 
by  the  adversary,  his  former  statements  on  oath  will  be  admissible, 
rests,  partly,  on  the  authority  of  several  decisions  both  in  the 
civil  and  criminal  courts;'^  partly,  on  the  analogies  furnished  by 
one  or  two  statutes; '  but  chiefly,  on  the  broad  principle  of  jus- 
tice, which  will  not  permit  a  party  to  take  advantage  of  his  own 
wrong.  In  a  case  where  three  prisoners  were  indicted  for  felony, 
and  a  witness  for  the  prosecution  was  proved  to  be  absent  through 
the  procurement  of  one  of  them,  the  court  held  that  his  deposi- 


^  Harrison  v.  Blades,  3  Camp.  458. 

2  E.  V.  Savage,  5  C.  &  P.  143,  per  Patteson,  J.     See  post,  §  481. 

-  11  &  12  v.,  c.  42,  §  17,  cited  post,  ?  479;  11.  v.  Hogg,  6  C.  &  P.  176,  per 
Gurney,  B. ;  K.  v.  Edmunds,  id.  165,  per  Tindal,  C.  J. ;  E.  v.  Wilshaw,  C.  & 
Marsh.  145;  II.  v.  Cockburn,  Dear.  &  Bell,  203;  7  Cox,  265,  S.  C,  cited  post, 
p.  435,  n.  '. 

*  Jones  V.  Jones,  1  Cox,  Ch.  E.  184;  Andrews  v.  Palmer,  1  Ves.  &  B.  22; 
Fry  V.  AVood,  1  Atk.  445;  Corbett  v.  Corbett,  id.  335,  336.  The  case  of  Doe 
V.  Evans,  3  C.  &  P.  219,  where  Vaughan,  J.,  is  said  to  have  rejected  the 
depositions  of  a  witness,  Avho  was  bed-riddon  and  nearly  a  century  old,  and 
quite  unable  to  attend  the  trial,  is  obviously  not  law. 

^  Lynn  v.  Eobertson,  2  Coop.  217. 

«  Ld.  Morley's  case,  Kel.  55,  5th  Ees. ;  6  How.  St.  Tr.  770,  771,  S.  C. ;  E. 
V.  Harrison,   12  How.  St.  Tr.   851,  852,  868,  per  Ld.  Holt;  Green  v.  Gatewick, 

B.  N.  P.  243;  E.  v.  Scaife,  2  Den.  281;  17  Q.  B.   238,  S.   C;  E.  v.  Guttridge, 
9  C.  &  P.  473.     See,  also,  Egau  v.   Larkin,   1  Arm.   M.   &  O.  403,  per  Brady, 

C.  B. 

7  See  50  G.  3,  c.  102,  §  5,  Ir.;  56  G.  3,  c.  87,  ?  3,  Jr.,  noticed  post,  §  497. 

(3300) 


CHAP,  v.]     DEPOSITIONS  TAKEN  BEFORE  JUSTICES.  433 

tion  might  be  read  in  evidence  as  against  the  man  who  had  kept 
him  out  of  the  way,  but  that  it  could  not  be  received  against  the 
other  two  men.' 


§  479.  Besides  those  cases,  in  which  the  admissibility  of  §  447 
secondary  proof  of  oral  testimony  is  found  to  rest  upon  the  ordinary 
principles  of  the  common  law,  the  Legislature  in  a  few  instances 
has  expressly  provided,  that  certain  depositions  should,  under  par- 
ticular circumstances,  be  received  in  evidence.^  The  most  important 
Act  on  this  subject  is  that  of  11  &  12  V.,  c.  42,  which  regulates 
the  mode  of  taking  depositions  before  committing  magistrates,  and 
their  subsequent  admissibility  in  evidence.  §  17  of  this  statute 
enacts,  "That  in  all  cases,  where  any  person  shall  appear  or  be 
brought  before  any  justice  or  justices  of  the  peace  charged  with 
any  indictable  offence,  whether  committed  in  England  or  Wales,  or 
upon  the  high  sea,  or  on  land  beyond  the  sea,  or  whether  such 
person  appear  voluntarily,  upon  summons,  or  have  been  appre- 
hended, with  or  without  warrant,  or  be  in  custody  for  the  same  or 
any  other  offence,  such  justice  or  justices,  before  he  or  they  shall 
commit  such  accused  person  to  prison  for  trial,  or  before  he  or  they 
shall  admit  him  to  bail,  shall,  in  the  presence  of  such  accused 
person,  who  shall  be  at  liberty  to  put  questions  to  any  witness  pro- 
duced against  him,  take  the  statement  ^  on  oath  or  a£firmation  of 
those  who  shall  know  the  facts  and  circumstances  of  the  case,  and 

1  E.  V.  Scaife,  2  Den.  281  ;  17  Q.  B.  233  ;  5  Cox,  243,  S.  C. 

2  See   "The  Fugitive  Oflfenders  Act,  1881,  "  44  &  45  V.,  c.   69,   §  29,  cited 
post,  §1562. 

^  The  form  given  Sched.  31  to  the  Act  is  as  follows  : — 
Dex)ositions  of  Witnesses. 
"  To  Wit, — The  examination  of  C.  D.  of  [Farmer']  and  E.  F.  of 

\_L(thourer'],  taken  on  [on//j]  this  day  of  in  the  year  of  our  Lord 

at  in  the   \_eounty']   aforesaid,  before  the  undersigned,    [one]  of 

Her  Majesty's  Justices  of  the  Peace  for  the  said  \_coun1y'],  in  the  presence 
and  hearing  of  A.  B. ;  who  is  charged  this  day  before  [wie],  for  that  he  the 
said  A.  B.  on  at  [&c.,   describing  the  offence  as  in  a  warrant  of 

commitment'].     This  deponent  C.  D.  on  his  [oatK]  saith  as  follows  [&c.,  stating 
the  deposition  of  the  ivitness  as  nearly  as  possible  in  the  words  he  uses.      When 
his  deposition,  is  complete,  let  him  sign  it.] 
And  this  deponent  E.  F.  upon  his  oath  saith  as  follows  [&c.]. 

The  above  depositions  of  C.   D.  and  E.   F.  were  taken  and   [stoorn]  before 
me  at  on  the  day  and  year  first  above  mentioned.  T.  S." 

(3301) 


43-1  DEPOSITIONS   TAKEN   BEFOKE   JUSTICES.  [PAKT   II. 

shall  put  the  same  into  writing,  and  such  depositions  shall  he  read 
over  to  and  signed  respectively  by  the  tcitnesses  who  shall  have  been 
so  examined,  and  shall  be  signed  also  by  the  justice  or  justices 
taking  the  same  ;  and  the  justice  or  justices,  before  whom  any  such 
witnesses  shall  appear  to  be  examined  as  aforesaid,  shall,  before  such 
witness  is  examined,  administer  to  such  witness  the  usual  oath  or 
afifirmation,  which  such  justice  or  justices  shall  have  full  power  and 
authority  to  do  ;  and  if,  upon  the  trial  of  the  person  so  accused  as 
first  aforesaid,  it  shall  be  proved',  by  the  oath  or  afiirmation  of  any 
credible  witness,  that  any  person  whose  deposition  shall  have  been 
taken  as  aforesaid,  is  dead,  or  so  ill  as  7iot  to  be  able  to  travel,  and 
if  also  it  be  proved  that  such  deposition  was  taken  in  the  presence 
of  the  person  so  accused,  and  that  he  or  his  counsel  or  attorney  had 
a  full  opportunity '  of  cross-examining  the  witness,  then,  if  such 
deposition  purport  to  be  signed  by  the  justice  by  or  before  whom 
the  same  purports  to  have  been  taken,  it  shall  be  lawful  to  read 
such  deposition  as  evidence  in  such  prosecution,  without  further 
proof  thereof,  unless  it  shall  be  proved  that  such  depositon  was 
not  in  fact  signed  by  the  justice  purporting  to  sign  the  same." 

§  480.  It  would  be  diflficult  to  frame  a  clause  open  to  more  ^  ^'^^ 
objections  than  the  one  just  cited.  First,  the  Act  states,  that  if 
it  be  proved,  among  other  things,  that  the  witness  "  is  dead,  or 
so  ill  as  not  to  be  able  to  travel,"  it  shall  be  lawful  to  read  his 
deposition  as  evidence  in  the  prosecution.  Now,  any  one,  bearing 
in  mind  the  maxim,  "expressio  unius  est  exclusio  alterius,"  would 
reasonably  interpret  this  to  mean  that,  unless  one  or  other  of 
these  facts  be  established,  the  deposition  shall  in  all  cases  be 
excluded ;  but,  as  such  an  interpretation  would  lead  to  very 
absurd  results,  the  judges  have  put  another  construction  on  the 
words,  and  have  held  that  they  do  not  annul  the  wise  common- 
law  rule,^  that  if  a  witness  be  fraudulently  or  forcibly  kept  out  of 
the  way  by  the  prisoner  himself,  his  deposition  shall  be  received.^ 


^  This  fact  may  be  negatived  by  proof  that  the  accused  was  insane  when 
the  deposition  was  taken,  or  was  otherwise  incapacitated  by  illness  from  cross- 
examining  the  deponent.     E.  v.   Peacock,  12  Cox,  21,  per  Brett  &  Mellor,  Js. 

2  Ante,  ?  478. 

^  R.  V.  Scaife.  2  Den.  281  ;  17  Q.  B.  238 ;  5  Cox,  243,  S.  C. 

(3302) 


CHAP,  v.]  DEPOSITIONS  TAKEN  BEFORE  JUSTICES.  435 

In  thus  deciding,  the  judges  have  cerfainly  got  rid  of  one  diffi 
culty,  but  since,  in  so  doing,  they  have  relaxed  the  principles  of 
judicial  interpretation,  the  law,  regarded  as  a  science,  has  lost 
almost  as  much  as  it  has  gained.  AVhether  the  courts  will  go  one 
step  further,  and  admit  the  deposition  of  a  witness,  who,  although 
not  too  ill  to  travel,'  may  be  proved  to  be  permanently  insane,"* 
remains  to  be  seen,  but  such  a  decision  seems  naturally  to  follow 
from  the  former  ruling. 

§  481.  Next,  do  the  words  just  cited  mean,  that  in  all  cases  ?  449 
where  a  witness  is  too  ill  to  travel  at  the  time  of  the  trial,  his 
deposition,  if  proved  to  have  been  properly  taken,  must  be  ad- 
mitted in  evidence;  or,  in  other  words,  do  they  set  at  nought  the 
salutary  practice  of  obliging  the  prosecutor  to  apply  for  a  post- 
ponement of  the  trial,'  where  a  material  witness  is  only  suffering  / 
under  a  teinpovanj  indisposition?  Such  appears  to  be  the  only 
construction  that  can  fairly  be  put  upon  the  Act;  and,  conse- 
quently, the  court  has  admitted  the  deposition  of  a  woman  who, 
when  the  trial  took  place  had  just  been  confined,'  though  it  was 
urged  with  much  force  that  in  a  very  few  weeks  the  woman  would 
almost  certainly    be    able   to   testify   viva   voce  in   court.^     What 

'  When  a  witness  is  able  to  travel  without  risk,  her  ohl  age  and  nervousness 
and  inability  to  stand  a  cross-examination  will  not  justify  the  reading  of  her 
deposition.  R.  v.  Farrell,  43  L.  J.,  M.  C.  94:  12  Cox,  605;  &  2  Law  Rep.,  C. 
C.  116,  S.  C:   R.  r.  Thompson,  13  Cox,  181,  per  Lush,  J. 

2  Ante,  ^  476.  In  R.  r.  Cockburn,  Dear.  &  Bell,  203;  7  Cox.  265,  S.  C, 
the  deposition  of  a  witness  was  received,  on  his  doctor  proving,  that,  though 
he  might  have  been  brought  to  the  court  without  danger  to  life,  he  was 
suffering  from  paralysis,  which  disabled  him  altogether  from  giving  evidence. 
See,  also,  R.  r.  Wilson,  8  Cox,  453. 

^  Ante,  ?  477. 

*  So,  in  R.  V.  Stephen.son,  31  L.  J.,  M.  C.  147;  L.  &  Cave,  165;  and  9  Cox, 
156,  S.  C,  the  court  admitted  the  deposition  of  a  woman,  who  was  dailv- 
expecting  her  confinement,  and  was  "otherwise  poorly."  See.  too,  R.  v. 
Croucher,  3  Fost.  &  Fin.  285;  R.  ?'.  Wilson,  12  Cox,  622;  R.  v.  Heesom,  ll 
Cox,  40.  per  Lush,  J. ;  and  R.  r.  Goodfellow,  14  Cox,  326,  per  Bowen,  J. ;  R.  v. 
Wcllings,  L.  R.,  3  Q.  B.  D.  428;  14  Cox,  105;  and  47  L.  J.,  M.  C.  100,  S.  C. 
In  these  last  three  cases  the  woman  was  daily  expecting  her  confinement. 

*  R.  V.  Harvey,  4  Cox,  441.  But  see  R.  ?\  Omant,  6  Cox,  466,  perCrompton. 
J.;  R.  V.  Wilton,  1  Fost.  &  Fin.  309,  per  Willes,  J.;  R.  t'.  Walker,  id.  534,  pei 
id.  ,-R.  V.  Tail,  2  Fost.  &  Fin.  553,  per  Crompton,  J.,  from  which  cases  it 
appears  that  the  judge,  notwithstanding  the  Act,  has  a  discretionary  power  of 
postponing  the  trial,  in.stead  of  allowing  the  deposition  to  be  read. 

7  LAW  OF  EVin,— v.  II.  (3303) 


43G  DEPOSITIONS  TAKEN  BY  JUSTICES,  HOW  PROVED.      [PART  II. 

renders  this  state  of  the  law  the  more  remarkable  is,  that  if,  instead 
of  the  Avomao's  deposition  having  been  offered  in  evidence  in  a 
criminal  case,  her  examination  before  a  commissioner  had  been 
tendered  in  a  civil  suit — at  least  before  the  Rules  of  the  Supreme 
Court  came  into  operation,' — it  could  not  have  been  received;  for, 
as  previously  shown,^  an  examination  taken  at  common  law  could 
not  have  been  read  in  evidence  on  the  ground  of  the  sickness  or 
other  infirmity  of  the  witness,  unless  it  were  proved  that  such 
sickness  or  inlirmity  was  of  a  permanent  character. 

§  482  Again,  what  amount  of  proof  will  authorise  the  reading  I  450 
of  the  deposition  ?  Will  it  suffice  simply  to  show  that  the  witness 
is  dead,  or  too  ill  to  travel  ;  that  he  was  examined  in  the  presence 
of  the  accused,  who  had  a  full  opportunity  of  cross-examining 
him;  and  that  the  document  purports  to  be  signed,  either  by  the 
committing  justice,  or,  at  least,  by  the  justice  "by  or  before  whom 
the  same  purports  to  have  taken  place  ?"  ^  or  must  the  prosecutor 
further  prove  all  or  any  of  the  following  facts,  viz,  that  the  depo- 
sition was  taken  before  the  accused  was  committed  or  bailed;  that 
it  was  taken  on  oath  or  affirmation;  that  it  was  read  over  to  the 
witness,  and  that  it  was  signed  by  him?  The  clause  enumerates 
all  these  circumstances  as  apparently  necessary  ingredients  in  a 
valid  deposition;  and  then,  in  the  paragraph  relative  to  the  proof, 
speaks,  first,  of  "the  person,  whose  deposition  shall  have  been 
taken  as  aforesaid,^''  being  dead,  &c.,  and  next,  of  '^^  such  ^  depo- 
sition "  purporting  to  be  signed  by  the  justice.  If  it  be  contended 
that  the  court  will  infer  from  the  magistrate's  signature  that  the 
statutory  provisions  have  all  been  complied  with,  the  form  of  the 
caption  of  the  deposition,  as  given  in  the  schedule  to  the  Act,^ 
furnishes   a   probable  answer    to    such  an  argument:  for  by  that 


1  See  post,  ?  TilG.  -  Ante,  U  472,  477. 

^  In  R.  V.  Vidil,  9  Cox,  4,  Blackburn,  J.,  held  that  the  deposition  of  a  sick 
witness  was  admissible,  though  it  had  been  taken  before  two  magistrates  who 
acted  only  on  that  occasion,  and  though  the  prisoner  had  been  charged  before 
and  committed  l)y  another  magistrate.     Sed  qu. 

*  As  to  the  meaning  of  the  word  "  such,"  see  per  Ld.  Brougham  in  Case- 
ment V.  Fulton,  5  Moo.  P.  C.  R.  140. 

^  Ante,  §  479,  n.  '\ 

(3304) 


CHAP,  v.]    DEPOSITIONS  TAKEN  BY  JUSTICES,  HOW  DISPROVED.  437 

form  the  justice  merely  states  that  the  witness  was  examined  on 
oath,  and  in  the  presence  of  the  accused,  and  it  is  wholly  silent 
as  to  whether  or  not  the  examination  was  read  over  to  the  witness, 
or  was  signed  by  him.  Now,  as  the  magistrates's  signature  is 
clearly  insufficient  to  prove  that  the  accused  was  present  during 
the  examination  of  the  witness,  though  that  fact  is  positively  stated 
in  the  caption  so  attested,  on  what  ground  can  it  be  urged  that 
the  same  signature  is  sufficient  to  prove  the  taking  of  the  oath, 
which  is  a  fact  stated  in  the  caption  in  a  precisely  similar  manner? 
At  all  events,  how  can  the  facts  that  the  deposition  was  read  over 
to  the  witness,  and  that  it  was  afterwards  signed  by  him,  be  proved 
by  the  magistrate's  signature,  when  neither  of  these  circumstances 
is  so  much  as  alluded  to  in  any  part  of  the  document?  In  short, 
if  the  signature  of  the  magistrate  does  not  authenticate  the  facts 
which  are  recited  in  the  caption,  how  can  it  authenticate  facts 
which  are  not  there  recited  at  all  ? 


§  4S3.  A  further  difficulty  arises  on  determining  what  amoiint  ^  451 
of  proof  on  the  part  of  the  prisoner  will  render  a  deposition 
inadmissible?  If  he  can  show  that  the  signature,  purporting  to 
be  that  of  the  justice,  is  a  forgery,  of  course  the  deposition  cannot 
be  received.  But  how  will  the  case  stand,  if,  being  unaVile  to 
prove  that  fact,  he  can  still  show  that  the  deposition  was  not  taken 
upon  oath,  or  that  it  was  not  read  over  to  the  witness,  or  that  the 
signature  purporting  to  be  that  of  the  witness  was  not  made  by 
him,  or  that  the  witness  had  refused  or  omitted  to  sign  the  state- 
ment? Will  he  be  allowed  to  adduce  such  evidence,  and  will 
such  evidence,  if  adduced,  avail  him  ?  These  are,  all  of  them, 
points  which  cannot  fail  to  raise  serious  difficulties  in  interpreting 
the  Act,  and  which  might  easily  have  been  avoided  had  the  drafts- 
man possessed  ordinary  knowledge  of  the  subject,  or  exercised 
ordinary  care. 


§  484.  Passing  now  from    these    speculative    questions,  it  will    ^  452 
be    convenient  to  consider  briefly  the    proper  course    of    taking 
depositions    under  the  Act.     And  here   it   seems  clearly  to  have 
been   intended    by  the   Legislature,  that   the    accused    should  be 
charged,  in  the  first  instance,  with   some   indictable  offence;  that 

(3305) 


438  MODE  OF  TAKING  DEPOSITIONS  BY  JUSTICES.  [PAKT  ir. 

the  statement  of  each  witness  should  then  be  made  nnder  the 
sanction  of  an  oath  or  affirmation,  administered  by  the  magistrate 
before  whom  the  charge  is  preferred; '  that  such  oath  or  affirma- 
tion should  be  administered  in  the  presence  of  the  accused;  that 
the  statement  should  be  made  entirely  in  his  presences'^  and  that 
he  should  have  full  opportunity  for  cross-examination;  that  the 
whole  of  the  statement  elicited  either  by  examination  or  by  cross- 
examination,  and  not  merely  so  much  of  the  evidence  as  the 
justice  might  consider  material,^  should  be  reduced  to  writing  in 
the  first  person,  and  in  the  very  words  of  the  witness,*  that  the 
deposition,  when  completed,  should  be  read  over  to  the  witness, 
and  be  signed  by  him,  as  a  token  of  his  assenting  to  its  correct- 
ness;^ that  the  whole  body  of  the  depositions,  if  not  each  depo- 
sition,*^ should  also  be  signed  by  the  justice,  and  that  they  should 
be  transmitted  by  him, — together  with  the  written  information,  the 
statement  of  the  accused,  and  the  recognizance  of  bail,  if  any 
such  documents  should  exist, — to  the  proper  officer  of  the  court  in 
which  the  trial  is  to  be-  had,  before  or  at  the  opening  of  such 
court.' 

§  485.  In  directing  the  magistrate  to  take  down  the  statements  I  453 
of  the  witnesses  as  nearly  as  possible  in  their  own  words,  and  not 
merely  "  so  much  thereof  as  shall  be  material,"  the  Legislature, 
of  course,  did  not  intend  that  the  depositions  should  be  loaded 
with  every  idle  word  let  fall  by  the  persons  under  examination, 
though  obviously  having  no  reference  to  the  charge  against  the 
accused,  but  it  certainly  meant  to  fetter  the  discretion  of  the 
justices,  who,  under  the  old  law,  were  apt  to  reject  as  immaterial 
much  valuable  information.  Regarded  in  this  light,  the  change 
is  salutary;    for  not  only    does  it  frequently   happen,  that    facts, 


•  See  R.  V.  Vidil,  9  Cox,  4,  cited  ante,  §  4P2,  n.  '' 

^  The  same  doctrine  prevailed  at  common  law.  See  R.  v.  Errington,  2  Lew. 
C.  C.  142;  R.  V.  Woodcock,  1  Lea.  502;  R.  v.  Dingier,  2  Lea.  561;  R.  v. 
Paine,  1  Salk.  281;  5  Mod.  163,  S.  C,  cited  with  approbation  by  Ld.  Kenyon 
in  R.  V.  Eriswell,  3  T.  R.  723. 

'  This  was  the  old  law:  see  7  G.  4,  c.  64,  ??  2  Sc  3. 

*  See  Sch.  3f.  cited  ante,  |  479,  n.  l 

5  SeeR.  V.  Plumnier,  1  C.  &  Kir.  604;  R.  r.  Fleniniing,  2  Lea,  854. 
«  See  §  487,  post.  '  See  H  17  &  20  of  11  &  12  V.,  c.  42. 

(3306) 


I 


CHAP,  v.]  DEPOSITIONS  TAKEN  BEFORE  JUSTICES.  439 

Avhich  on  a  preliminary  inquiry  appear  to  be  of  trifling  import- 
ance, turn  out  in  the  sequel  to  be  extremely  relevant  but,  where 
all  the  evidence  is  not  given,  the  court,  the  prosecutor,  and  the 
prisoner,  are  alike  kept  in  the  dark,  and  much  time  may  be  wasted 
in  endeavours  to  throw  discredit  upon  the  testimony  of  witnesses, 
by  showing  that  they  have  made  statements  at  the  trial  which 
are  not  to  be  found  in  the  depositions  returned.'  If  a  person 
of  weak  intellect,  or  a  child,  be  examined  before  the  justice, 
it  is  also  desirable  that  the  questions  and  answers  touching  his 
capacity  to  take  an  oath,  should  appear  on  the  face  of  the 
deposition.^ 


§  486.  Whether  a  deposition  originally  written  down  in  the  §  454 
absence  of  the  prisoner  could  be  received  in  evidence  under  the 
Act,  on  proof  being  given  that  it  had  afterwards  been  read  over 
in  his  presence  to  the  witness,  who  had  then  assented  on  oath  to 
its  contents,  is  a  very  problematical  question ;  for  although  depo- 
sitions, thus  laxly  taken,  have  more  than  once  been  admitted 
under  the  old  law,^  this  course  of  proceeding  has  frequently  been 
condemned  by  the  judges  as  highly  unjust;*  and,  indeed,  it  is 
obvious  that  it  affords  no  fair  opportunity  to  the  accused  of  cross- 
examining  the  deponent.  On  one  occasion,  Mr.  Baron  Platfc 
rejected  a  deposition  expressly  upon  this  ground;  and,  at  the 
same  time,  took  occasion  to  remark,  that  a  prisoner  could  not  have 
"  a  full  opportunity  of  cross-examining  the  witness,"  within  the 
meaning  of  the  statute,  unless  the  deposition  was  taken  down  in 
his  presence,  and  in  the  presence  of  the  magistrate,  and  unless  he 
was  warned  by  the  magistrate  at  the  close  of  the  examination  that 


1  R.  V.  Potter,  7  C.  &  P.  650,  n. ;  R.  v.  Thomas,  id.  817;  R.  r.  Grady,  id. 
650;  R.  V.  Smith,  2  C.  &  Kir.  207;  R.   v.  Weller,  id.  223. 

2  R.  17.  Painter,  2  C.  &  Kir.  319,  per  Wilde,  C.  J. 

3  R.  V.  Smith,  R.  &  R.  339;  2  Starlc.  R.  208;  Holt,  N.  P.  R.  614,  S.  C. ; 
R.  V.  Calvert,  2  Cox,  491;  R.  v.  Walsh,  Sid.  115.  See  R.  v.  Christopher,  4 
Cox,  76;  2  C.  &"Kir.  994;  1  Den.  536,  S.  C. 

*  R.  V.  Johnson,  2  C.  «&  Kir.  394,  per  Piatt,  B. ;  R.  v.  Forbes,  Holt,  N.  P.  R. 
599,  u.,  per  Chambre,  J.;  R.  v.  Kiddy,  4  D.  &  R.  734;  R.  v.  Calvert,  2  Cox, 
492,  per  Rolfe,  B.;R.  v.  Walsh,  5  id.  115;  R.  v.  Beeston,  24  L.  J.,  M.  C.  6, 
per  Alderson,  B. ;  Pearce  &  D.  408,  S.  C.  See,  also,  R.  v.  Crowther,  1  T.  R. 
125. 

(3307) 


4iO  CAPTION  OF  DEPOSITIONS— ^SIGNATURES.  [PART  II. 

be  might  put  any  questions  he  liked  to  the  witness,  with  reference 
to  the  statement  which  had  been  made.' — It  is  also  extremely 
doubtful  whether  a  deposition  can  be  read  in  a  case,  where  the 
prisoner  has  abstained  from|askiug  any  cpiestion  in  consequence 
of  the  witness  beinar  too  ill  to  bear  further  examination." 


§  487.  With  respect  to  the  mode  of  entitling  the  depositions,  ?  455 
one  caption  at  the  head  of  the  whole  body  of  depositions  will 
suffice,^  if,  indeed,  it  be  necessary  in  strict  law,*  to  have  a  caption 
at  aU;^  and  no  objection  can  be  sustained  on  the  ground  that  the 
title  does  not  state  with  sufficient  precision  the  charge  against  the 
accused."  Although  each  witness  must  sign  his  own  deposition,  it 
will  be  sufficient  for  the  magistrate  to  attach  his  signature,  once 
for  all,  at  the  end  of  the  whole  body  of  depositions,  provided  that 
all  of  them  be  written  either  on  one  sheet  of  paper,'  or  on  different 
sheets  connected  with  each  other.^  Still,  this  course  of  proceed- 
ing should  not  be  indiscriminately  adopted;  for,  if  the  depositions 
be  copied  on  separate  sheets,  and  no  proof  be  given  of  their 
having  been  pinned,  or  otherwise  fastened  together,  at  or  before 
the  time  when  the  last  was  signed,^  those  bearing  no  signature 
will  be  rejected.'"  It  seems,  too,  that  the  signature  of  the  justice 
must  appear  on  the  face  of  the  deposition  to  be  that  of  the  ma- 
gistrate "  by,  or  befoi'e,  whom  the  same  purports  to  have  been 
taken,"  and  that  no  parol  evidence  will  be  received  to  supply  any 


1  E.  V.  Day,  6  Cox,  55.  See  R.  v.  Bates,  2  Fost.  &  Fin.  317;  R.  v.  Watts, 
3  New  R.  177;  33  L.  J.,  M.  C.  63;  L.  &  Cave,  339;  9  Cox,  395,  S.  C. 

2  R.  i:.  Hyde,  3  Cox,  90. 

^  R.  V.  Johnson,  2  C.  &  Kir.  355,  per  Alderson,  B. 

*  See,  however,  R.  v.  Newton,  1  Fost.  &  Fin.  641;  and  R.  r.  Galvin,  16  Ir. 
LawR.,  N.  S.  452;  10  Cox,  198,  S.  C,  in  which  last  case  the  Irish  Judges 
were  almost  equally  divided  upon  the  point. 

■^  R.  r.  Langbridge.  1  Den.  448;  2  C.  «&  Kir.  975,  S.  C. 

«  Id. 

'  R.  V.  Young,  3  C.  &  Kir.  106;  R.  v.  Osborne,  8  C.  &  P.  113,  per  Coleridge, 
J.,  and  Ld.  Abinger. 

8  R.  ?•.  Parker,  1  Law  Rep.,  C.  C.  225;  11  Cox,  478;  39  L.  J.,  M.  C.  60, 
S.  C. ;  overruling  R.  v.  Richards,  4  Fost.  &  Fin.  860.  See,  also,  R.  v.  Carrol, 
11  Cox,  322,  per  Hannen,  J. 

«  See  R.  V.  Lee,  4  Fost.  &  Fin.  65,  per  Pollock,  C.  B. 

^°  R.  V.  France,  2  M.  &  Rob.  207,  per  Alderson  and  Parke,  Bs. 

(3308) 


CHAP,  v.]      DEPOSITIONS  TAKEN  BEFORE  JUSTICES.  441 

omission  ou  this  bead.'  The  depositions,  when  admissible  under 
the  Act,  may  be  read  in  evidence  before  the  grand  jury  as  well  as 
at  the  actual  trial." 

§  488.  Although,  as  before  stated,^  many  points  may  arise  §  45G 
respecting  the  proper  mode  of  proving  depositions  under  the 
statute,  thus  much  appears  to  be  quite  clear,  that  it  is  no  longer 
necessary,  as  formerly  was  the  case,  to  verify  the  signature  of 
the  magistrate.  This  change,  however,  is  productive  of  no  real 
advantage;  for  as  proof  must  certainly  be  adduced  "that  the 
deposition  was  taken  in  the  presence  of  the  accused,  and  that 
he,  or  his  counsel  or  attorney,  had  a  full  opportunity  of  cross- 
examining  the  witness,"  it  is  obvious  that  either  the  justice  or  his 
clerk,  or  at  least  some  person  who  was  present  during  the  whole 
inquiry,*  must  be  forthcoming,  in  order  to  show  that  the  forms  of 
law  have  been  duly  complied  with.  When  the  deposition  is 
sought  to  be  read  on  the  ground  of  the  sickness  of  the  witness,  it 
must,  of  course,  be  proved  that  he  is  at  the  actual  time  of  the 
trial  too  ill  to  travel;  and  the  judges,  very  properly,  seem  in- 
clined to  hold  that  this  fact  should  be  strictly  established.^  Mere 
proof  that  the  witness  was  confined  to  his  bed  some  days  before 
will  not  suffice;'^  and,  as  a  general  rule,  it  will  be  prudent,'  though 
it  is  not  absolutely  necessary,^  to  have  the  testimony  of  a  medical 
man. 

§  489.  It  may  here  be  convenient  to  repeat, — what  was  mentioned    ?  4:7 
before  in  another  connexion,'' — that  a  deposition  will  be  admissible 


1  R.  V.  Miller,  5  Cox,  166,  per  Maule,  J. 

2  R.  V.  Clements,  2  Den.  251;  5  Cox,  191,  S.  C. 

3  Ante,  F^  482,  483. 

*  See  li.  V.  Wilshaw,  C.  &  Marsh.  145;  R.  v.  Wilson,  12  Cox,  622. 

*  See  R.  r.  Harris,  4  Cox,  440;  R.  v.  Ulner,  id.  442;  R.  v.  Riley,  3  C.  &  Kir. 
116;  see,  also,  R.  v.  Day,  6  Cox,  55. 

«  R.  V.  Riley,  3  C.  &  Kir.  116;  R.  v.  Williams,  4  Fost.  &  Fin.  515,  per 
Pigott,  B. 

'  R.  V.  Riley,  3  C.  &  Kir.  116;  R.  v.  Welton,  9  Cox,  296,  per  Byles,  J.;  R.  v. 
Williams,  4  Fost.  &  Fin.  515,  per  Pigott,  B. 

*  R.  V.  Stephenson,  31  L.  J.,  M.  C.  147;  L.  &  Cave,  165;  9  Cox,  156,  S.  C; 
R.  V.  Croucher,  3  Fost.  &  Fin.  285,  per  Bramwell,  B. 

9  Afate,  g  467. 

(3309) 


442    DEPOSITIONS  TAKEN  ON  BEHALF  OF  THE  ACCUSED.    [PART  II. 

under  this  Act,  though  it  was  taken  upon  a  charge  technically 
different  from  that  in  respect  of  which  the  accused  is  afterwards 
indicted,  provided  that  on  the  former  inquiry  a  full  opportunity 
of  cross-examination  has  been  afforded  to  him.  For  instance, 
the  deposition  of  a  deceased  person,  taken  on  a  charge  against 
the  prisoner  of  having  stabbed  him,  or  done  him  some  grievous 
bodily  harm,  can  be  read  on  a  subsequent  trial  for  his  murder  or 
manslaughter.' 

§  490.  In  addition  to  the  regulations  for  taking  depositions, 
which  are  to  be  found  in  §  17  of  11  &  12  V.,  c.  42,'  an  Act 
was  passed  in  18G7,''  which  contains  two  enactments  of  some 
importance  relative  to  this  subject.     The  first*  provides,  in  sub- 

'  R.  V.  Beeston,  24  L.  J.,  M.  C.  o;  Pearce  &  D.  405,  S.  C. ;  K.  v.  Dilmore,  6 
Cox,  52,  per  Wightman,  J. ;  R.  v.  Lee,  4  Fost.  &  Fin.  63,  per  Pollock,  C.  B. ;  R. 
V.  Williams,  12  Cox,  101.     See  R.  v.  Clarke,  2  Fost.  &  Fin.  2. 

''  Ante,  I  479. 

=»  30  &  31  v.,  c.  35. 

^  ?  3  enacts,  that  "  in  all  cases  where  any  person  shall  appear  or  be  brought 
before  any  justice  or  justices  of  the  peace,  charged  with  any  indictable  ofi'ence, 
whether  committed  within  this  realm  or  upon  the  high  seas  or  upon  land 
beyond  the  seas,  and  whether  such  person  appear  voluntarily  upon  summons, 
or  has  been  apprehended  with  or  without  warrant,  or  be  in  custody  for  the 
same  or  any  other  offence,  such  justice  or  justices,  before  he  or  they  shall 
commit  such  accused  person  for  trial  or  admit  him  to  bail,  shall,  Immediately 
after  obeying  the  directions  of  the  eighteenth  section  of  the  Act  eleventh  and 
twelfth  Victoria,  chapter  forty-two,  demand  and  require  of  the  accused  person 
whether  he  desires  to  call  any  witness;  and  if  the  accused  person  shall,  in 
answer  to  such  demand,  call  or  desire  to  call  any  witness  or  witnesses,  such 
justice  or  justices  shall,  in  the  presence  of  such  accused  person,  take  the 
statement  on  oath  or  affirmation,  both  examination  and  ci'oss-examination,  of 
those  who  shall  be  so  called  as  witnesses  by  such  accused  person,  and  who 
shall  know  anything  relating  to  the  facts  and  circumstances  of  the  case,  or 
anything  tending  to  prove  the  innocence  of  such  accused  person,  and  shall 
put  the  same  into  writing;  and  such  depositions  of  such  witnesses  shall  be 
read  over  to  and  signed  respectively  by  the  witnesses  who  shall  have  been 
so  examined,  and  shall  be  signed  also  by  the  justice  or  justices  taking  the 
same,  and  transmitted  in  due  course  of  law  with  the  depositions;  and  such 
witnesses,  not  being  witnesses  merely  to  the  character  of  the  accused,  as 
shall  in  the  opinion  of  the  ju.stice  or  justices  give  evidence  in  any  way 
material  to  the  case,  or  tending  to  prove  the  innocence  of  the  accused  person, 
shall  be  bound  by  recognisance  to  appear  and  give  evidence  at  the  .said  trial; 
and  afterwards,  upon  the  trial  of  such  accused  person,  all  the  laws  now  in 
force  relating  to  the  depositions  of  witnesses  for  the  prosecution  shall  extend 
and  be  applic.ible  to  the  depositions  of  witnesses  hereby  directed  to  be  taken." 

(3310) 


CHAP,  v.]      DEPOSITIONS  TAKEN  TO  PERPETUATE  TESTIMONY.  443 

stance,  that  every  person,  who  is  charged  before  a  justice  with 
an  indictable  offence,  shall  be  asked  whether  he  desires  to  call 
any  witnesses;  and,  if  he  does  so,  the  justice,  in  his  ])resence, 
shall  examine  such  witnesses  on  oath,  and  reduce  their  state- 
ments to  writing.  The  depositions  thiis  taken  shall  then  be  read 
over  to  the  witnesses  and  signed  by  them,  and  shall  also  be 
countersigned  by  the  justice,  and  "transmitted  in  due  course  of 
law;"  and,  afterwards,  upon  the  trial,  all  the  laws  relating  to  the 
depositions  of  witnesses  for  the  prosecution  shall  apply  to  these 
depositions. 

§  491.  The  other  enactment'  is  intended  to  provide  means  for  ^  '^^^^ 
perpetuating  the  testimony  of  witnesses,  who,  being  dangerously 
ill  and  unable  to  travel,  can  yet  give  material  information  relating 
to  some  indictable  ofience,  or  to  some  person  accused  of  such 
crime.  It  is  Yery  inartistically  drawn,  and  the  lawyer  would  be 
more  remarkable  for  courage  than  for  wisdom  who  would  venture 
to  put  a  legal  interpretation  on  its  ambiguous  phraseology.  Let 
it  speak  for  itself  as  follows: — "Whereas,  by  §  17  of  11  &  12  V., 
c.  42,  it  is  permitted  under  certain  circumstances  to  read  in 
evidence  on  the  trial  of  an  accused  person  the  deposition,  taken 
in  accordance  with  the  provisions  of  the  said  Act,  of  a  witness 
who  is  dead,  or  so  ill  as  to  be  unable  to  travel;  and  whereas,  it 
may  happen  that  a  person  dangerously  ill,  and  unable  to  travel, 
may  be  able  to  give  material  and  important  information  relating  to 
an  indictable  offence,  or  to  a  person  accused  thereof,  and  it  may 
not  be  practicable  or  permissible  to  take,  in  accordance  with  the 
provisions  of  the  said  Act,  the  examination  or  deposition  of  the 
person  so  being  ill,  so  as  to  make  the  same  available  as  evidence 
in  the  event  of    his  or  her  death   before  the  trial  of  the   accused 


I  4  also  enacts,  that  "all  the  provisions  of  the  said  Act  eleventh  and  twelfth 
Victoria,  chapter  forty-two,  relating  to  the  summoning  and  enforcing  the 
attendance  and  committal  of  witnesses,  and  binding  them  by  recognisance 
and  committal  in  default,  and  for  giving  the  accused  person  copies  of  the 
examinations,  and  giving  jurisdiction  to  certain  persons  to  act  alone,  shall  be 
read  and  shall  have  operation  as  part  of  this  Act." 
»  30  &  31  v.,  c.  35,  I  6. 

(3311) 


444  DEPOSITIONS    TAKEN    TO    PERPETUATE    TESTIMONY.      [PART  11. 

y>erson,  and  it  is  desirable  in  the  interests  of  truth  and  justice 
that  means  should  be  provided  for  perpetuating  such  testimony, 
and  for  rendering  the  same  available  in  the  event  of  the  death 
of  the  person  giving  the  same  :  therefore,  whenever  it  shall  be 
made  to  appear  to  the  satisfaction  of  any  justice  of  the  peace  that 
any  person  dangerously  ill,  and  in  the  opinion  of  some  registered 
medical  practitioner  not  likely  to  recover  from  such  illness,  is  able 
and  willing  to  give  material  information  relating  to  any  indictable 
offence,  or  relating  to  any  person  accused  of  any  such  ofPence,  and 
it  shall  not  be  practicable  for  any  justice  or  justices  of  the  peace  to 
take  an  examination  or  deposition  in  accordance  with  the  provisions 
of  the  said  Act  of  the  person  so  being  ill,  it  shall  be  lawful  for  the 
said  justice  to  take  in  writing  the  statement  on  oath  or  affirmation 
of  such  person  so  being  ill,  and  such  justice  shall  thereupon  sub- 
scribe the  same,  and  shall  add  thereto  by  way  of  caption  a  state- 
ment of  his  reason  for  taking  the  same,  and  of  the  day  and  place 
when  and  where  the  same  was  taken,  and  of  the  names  of  the 
persons  (if  any)  present  at  the  taking  thereof,  and,  if  the  same 
shall  relate  to  any  indictable  offence  for  which  any  accused  person 
is  already  committed  or  bailed  to  appear  for  trial,  shall  transmit  the 
same  with  the  said  addition  to  the  proper  officer  of  the  court  for 
trial  at  which  such  accused  person  shall  have  been  so  committed  or 
bailed,  and  in  all  other  cases  he  shall  transmit  the  same  to  the 
clerk  of  the  peace  of  the  county,  division,  city  or  borough  in  which 
he  shall  have  taken  the  same,  who  is  hereby  required  to  preserve 
the  same,  and  file  it  of  record;  and  if  afterwards,  upon  the  trial  of 
any  offender  or  offence  to  which  the  same  may  relate,  the  person 
who  made  the  same  statement  shall  be  pi'oved  to  be  dead,  or  if  it 
shall  be  proved  that  there  is  no  reasonable  probability  that  such 
person  will  ever  be  able  to  travel  or  to  give  evidence,  it  shall  be 
lawful  to  read  such  statement  in  evidence,  either  for  or  against  the 
accused,  without  further  proof  thereof,  if  the  same  purports  to  be 
signed  by  the  justice  by  or  before  whom  it  purports  to  be  taken, 
and  provided  it  be  proved  to  the  satisfaction  of  the  court  that  rea- 
sonable notice  of  the  intention  to  take  such  statement  has  been 
served  vipon  the  person  (whether  prosecutor  or  accvased)  against 
whom  it  is  proposed  to  be  read  in  evidence,  and  that  such  person, 
or  his  counsel  or  attorney,  had  or  might  have  had,  if  he  had  chosen 


(3312) 


CHAP,  v.]  DEPOSITIONS  TAKEN  BEFORE  CORONERS.  445 

to   be   present,  full  opportunity  of    cross-examining  the  deceased 
person  who  made  the  same."  ' 


§  492.  The  depositions  of  witnesses,  who  are  examined  before  §  458 
the  coroner^  are  rendered  admissible  as  secondary  proof,  by  virtue 
of  the  Act  of  7  G.  4,  c.  G4,  which  in  §  4  enacts,  "  That  every 
coroner,  upon  any  inquisition  before  him  taken,  whereby  any 
person  shall  be  indicted  for  manslaughter  or  murder,  or  as  an 
accessory  to  murder  before  the  fact,  shall  put  in  writing  the 
evidence  given  to  the  jury  before  him,  or  as  much  thereof  as  shall 
be  material,  and  shall  have  authority  to  bind  by  recognizance  all 
such  persons  as  know  or  declare  anything  material  touching  the 
said  manslaughter  or  murder,  or  the  said  offence  of  being  acces- 
sory to  murder,  to  appear  at  the  next  court  of  oyer  and  terminer, 
or  gaol  delivery,  or  superior  criminal  court  of  a  county  palatine  or 
great  sessions,  at  which  the  trial  is  to  be,  then  and  there  to  pro- 
secute or  give  evidence  against  the  party  charged;  and  every  such 
coroner  shall  certify  and  subscribe  the  same  evidence,  and  all  such 
recognizances,  and  also  the  inquisition  before  him  taken,  and  shall 
deliver  the  same  to  the  proper  of&cer  of  the  court  in  which  the  trial 
is  to  be,  before  or  at  the  opening  of  the  court."  ^ 

§  493.  It  may  be  doubtful   whether  these  provisions  have  not    §  459 
been  repealed  by  §  34  of  11  &  12  V.,  c.  42;'^  but  assuming  that 
they  are  still  in  force,  it  will  be  seen  that  they  differ  materially 
from  those  which  regulate  the  mode  of  taking  depositions  before 
justices,  and  of  proving  them  when  taken.     In  the  first  place,  the 


^  I  7  enacts,  that  "  wlienever  a  prisoner  in  actual  custody  shall  have  served, 
or  shall  have  received,  notice  of  an  intention  to  take  such  statement  as  here- 
inbefore mentioned,  the  Judj^e  or  justice  of  the  peace  by  Avhom  the  prisoner 
was  committed,  or  the  visiting  justices  of  the  prison  in  which  he  is  confined, 
may,  by  an  order  in  writing,  direct  the  gaoler  having  the  custody  of  the 
prisoner  to  convey  him  to  the  place  mentioned  in  the  said  notice  for  the 
purpose  of  being  present  at  the  taking  of  the  statement,  and  such  gaoler 
shall  convey  the  prisoner  accordingly,  and  the  expenses  of  such  conveyance 
shall  be  paid  out  of  the  funds  applicable  to  the  other  expenses  of  the  prison 
from  which  the  prisoner  shall  have  been  conveyed." 

*  See  9  G.  4,  c.  54,  |  4,  which  contains  similar  provisions  for  Ireland. 

3  See  K.  V.  Cleary,  2  Fost.  &  Fin.  850,  852. 

(3313) 


446  DEPOSITIONS  TAKEN  BEFORE  CORONERS,  [PART  11. 

coroner  is  only  required  to  put  in  writing  "  so  much  of  the  evidence 
as  shall  be  material;  "  secondly,  the  narrative  maybe  drawn  up 
in  the  third  person;  thirdly,  the  witness  is  not  required  to  sign 
the  document,  though  he  usually  does  so  for  the  purpose  of  identi- 
fying it;  '  fourthly,  the  deposition  mast,  it  would  seem,  be  proved, 
either  by  calling  the  coroner  who  subscribed  it,  or  by  proving  his 
signature  thereto,  and  showing  by  his  clerk,  or  by  some  person  who 
was  present  ct  the  inquiry,  that  the  forms  of  law  have  been  duly 
complied  with.^ 


§  494.  Another  striking  distinction  is  said  to  exist  between  de-  ^  460 
positions  returned  by  justices  and  those  taken  by  coroners.  The 
former,  to  be  admissible  as  secondary  evidence  against  the  prisoner, 
must  have  been  taken  in  his  presence,  but  it  is  alleged  that  the 
latter  will  be  received,  though  taken  in  his  absence.  This  doctrine 
appears  to  rest  on  two  or  three  decisions  of  the  date  of  Charles  II.,* 
which  are  capable  of  a  far  more  limited  interpretation,  and  are, 
moreover,  entitled  to  little  consideration,  as  having  been  pronounced 
at  a  time  when  the  rules  of  evidence  were  only  partially  under- 
stood;— on  dicta  thrown  out  by  Ld.  Kenyon  and  Mr.  Justice 
Buller  in  E.  v.  Eriswell;  * — on  a  note  of  a  case  said  to  have  been 
decided  by  Mr.  Baron  Hotham,^ — and  on  a  ruling  by  Mr.  Jvistice 
Coleridge,**  the  soundness  of  which  it  would  be  difficult  to  estab- 
lish. The  opposite  doctrine  is  not  only  ably  supported  by  Messrs. 
Starkie,^  Phillipps,^  and  Russell,^  but  it  has  of  late  years  been 
acted  on  by  Mr.  Justice  Montague  Smith, '°  and  it  appears  to  be  so 
consistent  with  sound  principle  as  to  insure  its  recognition,  should 
the  qu.estion  be  solemnly  discussed  in  modern  times." 

§  495.  Two  other  statutes,   which  regulate  the  admissibility  of    §  461 


'  See  R.  V.  Flemming,  2  Lea.  854.  ^  See  R.  r.  Wilshaw,  C.  &  Marsh.  145. 

*  Ld.  Morley's  ease,  Kel.  55;  6  How.  St.  Tr.  776,  S.  C. ;  Bromwieh's  case, 
1  Lev.  180;  Thatcher  t\  Waller,  T.  Jones,  5:?;  R.  v.  Harrison,  12  How.  St. 
Tr.  852. 

*  3  T.  R.  713,  722.  ^  R.  v.  Purefoy,  Pea.  Ev.  61,  n.  5th  ed. 
6  Sills  V.  Brown,  9  C.  &.  P.  601.  '  2  St.  Ev.  384—386. 

8  2  Ph.  Ev.  74,  75.  »  2  Russ.  C.  &  M.  892,  898. 

'"  R.  V.  Rigg,  4  Fost.  &  Fin.  1085. 
"  See  R.  v.  Wall,  2  Russ.  C.  &  M.  893,  n.  e. 

(3314) 


CHAP,    v.]  DEPOSITIONS    IN    BANKRUPTCY,  447 

certain  depositions,  are  the  Bankruptcy  Act,  1883,'  and  the  Irish 
Bankrupt  and  Insolvent  Act.  1857.''  The  one  enacts,  in  §  130, 
that  ' '  in  case  of  the  death  of  the  debtor  or  his  wife,  or  of  a 
witness  whose  evidence  has  been  received  by  any  court  in  any 
proceedino-  nnder  this  Act,  the  deposition  of  the  person  so  deceased? 
purporting  to  be  sealed  with  the  seal  of  the  court,  or  a  copy  thereof 
purporting  to  be  so  sealed,  shall  be  admitted  as  evidence  of  the 
matters  therein  deposed  to."  The  other  enacts,  in  §  305,  that, 
in  the  event  of  the  death  of  any  witness  deposing  to  the  petitioning 
creditor's  debt,  trading,  or  act  of  bankruptcy,  under  any  bankruptcy 
heretofore  or  hereafter,  or  under  any  petition  for  arrangement,  his 
deposition,  purporting  to  be  sealed  with  the  seal  of  the  Court  of 
Bankruptcy,  or  a  cojjy  thereof  purporting  to  be  so  sealed,  shall  in 
all  cases  be  received  as  evidence  of  the  matters  therein  respectively 
contained. 


§  496.  The  Irish  Act  of  50  G.  3,  c.  102,— after  the  humiliating  §  463 
recital,  that  men,  who  have  given  informacion  against  persons 
accused  of  crimes  in  Ireland,  have  been  murdered  before  the  trial, 
in  order  to  prevent  their  giving  evidence,  and  to  effect  the  acquittal 
of  the  accused, — enacts,  in  §  5,  that  if  any  person,  after  giving 
information  or  examination  iipon  oath  against  any  person  for  any 
offence,  shall,  before  the  trial,  be  murdered  or  violently  put  to 
death,  or  so  maimed,  or  forcibly  carried  away  and  secreted,  as  not 
to  be  able  to  give  evidence  on  the  trial,  his  information  or  examina- 
tion shall  be  admitted  in  all  courts  of  justice  in  Ireland  as  evidence 
on  the  trif^l;  provided  (and  this  is  a  remarkable  proviso,  since  it 
differs  fi'om  the  ordinary  rule  of  law  on  the  subject '^),  that  the 
information  or  examination  of  a  witness  secreted  shall  not  be 
evidence,  unless  it  shall  be  found  on  a  collateral  issue,  to  be  put 
to  the  jury  trying  the  prisoner,  that  he  was  secreted  by  the  person 
on  trial,  or  by  Fome  person  acting  for  him,  or  in  his  favour.  By 
the  subsequent  stat.  56  G.  3,  c.  87,  §  3,  Ir.,  informations,  or  ex- 
aminations, under  similar  circumstances,  and  after  similar  proof 
are  rendered  receivable  in  evidence  before  the  grand  jury. 


46  &  47  v.,  c.  52.  '^  20  &  21  V.,  c.  60.  Ir. 

3  Aute,  ?  23. 
(3315) 


44S   EXAMINATIONS  TAKEN  IN  INDIA  AS  TO  MISDEMEANOKS.  [PAET  II. 

§  499.  The  preceding  observations  have  been  confined  to  cases  g  405 
where  the  oral  testimony  has  been  given,  either  in  some  different 
suit  from  that  in  which  the  secondary  evidence  is  tendered,  or  in  a 
different  stage  of  the  same  legal  proceedings;  but  it  now  becomes 
necessary  to  advert  to  several  Acts  of  Parliament,  and  Kules  of  Court, 
which  have  intrenched  upon  the  common  law  rule,  requiring  the 
examination  of  witnesses  to  be  viva  voce  in  the  presence  of  the 
jury,  and  which  have,  under  certain  circumstances,  substituted  for 
such  examination  the  depositions  of  witnesses,  who  have  been  pre- 
viously examined  in  the  cause. 

§  500.  The  first  Act  relative  to  this  subject  was  passed  in  the  §  4GG 
year  1773,'  and  by  §  40  provides,  that  in  all  cases  of  indictments 
or  informations  laid  or  exhibited  in  what  is  now  called  the  Queen's 
Bench  Divisions  of  the  High  Court  ior  misdemeanors  or  offences  com- 
mitted  in  India,  it  shall  be  lawful  for  the  said  court,  upon  motion  to 
be  made  on  behalf  of  the  prosecutor"  or  defendant,  to  award  a  writ 
of  mandamus,  requiring  the  chief  justice  and  judges  ^  of  the  respec- 
tive High  Courts  of  Judicature  at  Fort  "William,  or  Madras,  or 
Bombay,*  to  hold  a  court,  with  all  convenient  speed,  for  the  exami- 
nation of  witnesses,  and  receiving  other  proofs  concerning  the 
matters  charged  in  such  indictments  or  informations;  and,  in  the 
meantime,  to  cause  such  public  notice  to  be  given  of  the  holding  of 
the  said  court,  and  to  issue  such  summons  or  other  process  as  may 
be  reqiiisite  for  the  attendance  of  the  witnesses,  agents,  or  counsel 
of  the  parties,  and  to  adjourn  from  time  to  time  as  occasion  may 
require;  and  such  examination  shall  be  publicly  taken  viva  voce  in 
the  said  court,  upon  the  oaths  of  witnesses,  and  the  oaths  of  skilful 
interpreters,  administered  according  to  the  forms  of  their  several 


1  13  G.  3,  c.  63. 

^  If  the  Att.-Gen.  move  for  the  rule,  his  statement  that  it  will  be  necessary 
is  sufficient  without  any  affidavit,  R.  v.  Douglas,  2  DjwI.  N.  S.  416. 

»  R.  V.  Douglas,  13  Q.  B.  42. 

*  The  Act  mentions  the  Supreme  Court  at  Fort  William  or  Calcutta,  and 
the  Mayor's  Court  at  Madras  and  Bombay,  but  High  Courts  of  Judicature 
have  now  been  established  at  Fort  William  or  Calcutta,  at  Madras,  and  at 
Bombay,  and  these  courts  have  all  the  powers  of  the  former  courts,  24  &  25 
v.,  c.  104,  II  10  &  11.  See  Wilson  v.  Wilson,  L.  R.,  9  P.  D.  8,  per  Ct.  of 
App. 

(3316) 


CHAP,  v.]  DEPOSITIONS  TAKEN  IN  INDIA  IN  TROCEED.  IN  PARL.    449 

religions;  and  shall,  by  some  sworn  officers  of  the  court,  be  reduced 
into  writing  on  parchment,'  in  case  any  duplicates  shall  be  required 
on  behalf  of  any  of  the  parties  interested,  and  shall  be  sent  to 
the  Queen's  Bench  Division  closed  np,  and  under  the  seals  of  two 
or  more  of  the  judges  of  the  said  court,  and  one  or  more  of  the  said 
judges  shall  deliver  the  same  to  the  agents  of  the  parties  requiring 
the  same;  which  agents,  or,  in  case  of  their  death,  the  person  into 
whose  hands  the  same  shall  come,  shall  deliver  the  same  to  one  of 
the  clerks  of  the  Queen's  Bench  Division,  in  the  piiblic  office,  and 
make  oath  that  he  received  the  same  from  the  judges  in  India,  or 
if  the  agent  be  dead,  in  what  manner  the  same  came  into  his  hands; 
and  that  the  same  has  not  been  opened  or  altered  since  he  received 
it  (which  oath  the  clerk  in  court  is  required  to  administer);  "and 
such  depositions,  being  duly  taken  and  returned  according  to  the 
true  intent  and  meaning  of  this  Act,  shall  be  allowed  and  read,  and 
shall  be  deemed  as  good  and  competent  evidence,  as  if  such  witness 
had  been  present,  and  sworn  and  examined  viva  voce  at  any  trial 
for  such  crimes  or  misdemeanors  "  in  the  Queen's  Bench  Division; 
"  and  all  parties  concerned  shall  be  entitled  to  take  copies  of  such 
depositions  at  their  own  costs  and  charges." 


§  501.  §  42  enacts,  that,  in  all  proceedings  in  Parliament  touch-  §  467 
ing  any  offences  committed  in  India,  the  Lord  Chancellor  or  Speaker 
of  the  House  of  Lords,  and  also  the  Speaker  of  the  House  of  Com- 
mons, may  issue  their  warrants  to  the  Governor- General  and 
Council,  or  to  the  chief  justice  and  judges  of  the  High  Court  of 
Judicature  at  Fort  William,  Madras,  or  Bombay,"  for  the  examina- 
tion of  witnesses;  and  such  examination  shall  be  returned  to  the 
Lord  Chancellor  or  Speakers  respectively,  and  proceeded  upon  as  if 
the  directions  contained  in  §  40  were  again  repeated;  and  the  ex- 
amination, so  returned,  shall  be  deemed  good  evidence,  and  shall 
be  allowed  and  read  in  the  respective  Houses.  §  45  provides,  that 
no  depositions  taken  and  returned  by  virtue  of  this  Act  shall  be 
given  in  evidence,  in  any  capital  case,  other  than  such  as  shall  be 
proceeded  against  in  Parliament. 


1  R.  V.  Douglas,  13  Q.  B.  42.  ^  See  ante,  §  500,  n. 

(3317) 


450  DEPOSITIONS  IN  INDIA  IN  CRIMINAL  CASES.  [PABT  11. 

§  502.  The  Kuiue  statute  enacts  in  §  41,  tbat,  -wbonever  any  §  408 
person  shall  commence  any  action,'  for  -wiiicb  cause  hath  arisen  in 
'  India,^  in  any  of  the  courts  at  "Westminster,  such  courts  respectively' 
mav,  upon  motion  there  to  be  made,*  award  a  writ  in  the  natvu'e  of 
a  mandamus  or  commission  to  the  chief  justice  and  judges  of  the 
High  Court  of  Judicature  at  Fort  William,  Madras,  or  Bombay,''  for 
the  examination  of  witnesses;  and  such  examination,  being  duly 
returned,  shall  be  allowed  and  read,  and  be  deemed  good  evidence, 
at  any  trial  or  hearing  between  the  parties  in  such  action,  as  if  the 
directions  prescribed  in  §  40  were  again  repeated. 

§  503.  The  provisions  contained  in  §  40  of  this  statute  were  re-  g  469 
enacted  in  §§  78  and  28  of  the  respective  Acts  of  24  G.  3,  c.  25, 
and  26  G.  3,  c.  57,  which  regulate  the  trial  of  British  subjects, 
who,  while  employed  in  India  under  the  Crown  or  the  late  East 
India  Company,  shall  have  been  guihy  of  extortion  or  other  mis- 
demeanors; and  a  clause  substantially  the  same,  though  varying 
in  some  of  the  minute  details,  has  been  introduced  into  the  Act  of 
42  G.  3,  c.  85,"*  which  authorises  the  Queen's  Bench  Division,  in 
Eno-land,  to  try  any  person  employed  in  the  public  service  abroad, 
who,  in  the  exercise,  or  under  colour,  of  such  employment,  shall 
have  committed  any  offenca.  By  §  3  of  this  last-named  statute,  as 
also  by  §  81  of  24  G.  3,  c.  25,  the  Queen's  Bench  t)ivibion,  instead 
of  directing  the  evidence  to  be  taken  viva  voce,  is  empowered,  on 
motion  made  by  the  Attorney  General,  prosecutor,  or  defendant,  to 
order  that  an  examination  de  bene  esse  of  witnesses  upon  interro- 
gatories, in  any  case  where  the  viva  voce  testimony  of  such  witnesses 


'  The  words  of  the  Act  are  *'  any  action  or  suit  in  law  or  equity." 
''■  See  Francisco  v.  Gilmore,  1  B.  &  P.  177. 
^  Savage  v  Binney,  2  DowL  643. 

*  These  words  render  it  necessary  for  the  application  to  be  made  to  the  court, 
the  Judge  at  Chambers  having  no  jurisdiction.  Clarke  v.  E.  India  Co.,  6 
Dowl.  &  L.  278.  The  motion  may  be  made,  though  issues  in  law  are  pending 
for  argument,  Kelsall  v.  Marsliall,  1  Com.  B.,  N.  S.  266. 

*  See  ante,  I  500,  n.  \ 

•*  I  2.  See,  as  to  mode  ol  proceeding  under  this  sect.,  R.  r.  Jones,  8  East, 
31,  where  the  court  held,  that  to  entitle  a  defendant  to  have  his  trial  put  off 
till  the  return  of  the  writ  of  mandamus,  he  must  state,  by  affidavit,  such 
special  grounds  as  will  lead  the  judges  to  believe  that  the  witnesses  sought  to 
be  examined  are  really  material  for  the  defence. 

(3318) 


CHAP,  v.]   DEPOSITIONS  IN  COLONIES  IN  CRIMINAL  CASES.       45]. 

cannot  conveniently  be  had,  should  be  taken  before  an  examiner 
appointed  by  the  court;  and  the  depositions  so  taken  shall  be  read, 
and  deemed  sufficient  evidence,  upon  the  trial  of  the  indictment  or 
information,  or  in  any  subsequent  proceedings  relating  thereto, 
saving  all  just  exceptions  to  the  same.  The  Legislature  has,  also, 
by  the  Act  of  G  &  7  V.,  c.  98,  §  4,  extended  the  provisions  con- 
tained in  13  G.  3,  c.  63,  §  40,  to  all  indictments  or  informations 
laid  or  exhibited  in  the  Queen's  Bench  Division,  for  misdemeanors 
or  offences  committed  against  the  Acts  passed  for  the  suppression 
of  the  slave  trade,  in  any  places  out  of  the  United  Kingdom,  and 
within  any  British  colony,  settlement,  plantation,  or  territory. 

§  504.  By  none  of  these  statutes  is  the  party,  who  seeks  to  use  g  470 
the  depositions,  directed  to  prove  that  the  witnesses,  at  the  time  of 
the  trial,  are  beyond  the  jurisdiction  of  the  court.  StiJl,  upon 
general  principle,  some  slight  evidence  of  this  nature  would  seem 
to  be  requisite;  for  although  the  language  of  the  Acts,  rendering 
the  depositions  evidence,  is  exceedingly  strong,  it  may  well  be 
doubted  whether  an  express  enactment  would  not  be  necessary,  in 
order  to  override  the  long- established  rule  of  law,  that  when  a  wit- 
ness is  living  within  the  jurisdiction  of  the  court,  and  the  party 
who  requires  his  evidence  has  the  power  of  calling  him,  his  deposi- 
tion cannot  be  read.  This  view  of  the  subject  is  confirmed  by  the 
Rules  of  the  Supreme  Court,  1883,  which  expressly  provide, — as  will 
presently  be  seen,^ — that  depositions  taken  under  them  shall,  except 
under  special  circumstances,  be  deemed  merely  secondary  proof. 

§  505.  The  Act  of  1  W.  4,  c.  22,  further  enacts,  in  §  1,  that  all  §  471 
the  powers,  authorities,  provisions,  and  matters  contained  in  the 
Act  of  13  G.  4,  c.  03,  "relaling  to  the  examination  of  witnesses  in 
India,  shall  be,  and  the  same  are,  hereby  extended  to  all  colonies, 
islands,  plantations,  and  places  under  the  dominion  of  His  Majesty 
in  foreign  parts,  and  to  the  judges  of  the  several  courts  therein,  and 
to  all  actions'  depending  in  the  High  Court  of  Justice,  in  what 


'  Post,  §  516. 

"^  These  words  do  not  inchide    an  action  at  the  suit  of  the  Crown,  E.  v. 
Wood,  7  M.  &  W.  573,  per  Parke,  B. 

8   LAW  OF  EVID. — V.  II.  (3319) 


452  RULES  OF  SUP,  CT.  RKSPECTING  DEPOSITIONS.        [PART,  II, 

place  or  country  soever  the  cause  of  action  may  have  arisen,  and 
whether  the  same  may  have  arisen  within  the  jurisdiction  of  the 
court,  to  the  judges  whereof  the  writ  or  commission  may  be 
directed,  or  elsewhere,  when  it  shall  appear  that  the  examination  of 
witnesses,  under  a  writ  or  commission  issued  in  pursuance  of  the 
authority  hereby  given,  will  be  necessary  or  conducive  to  the  due 
administration  of  justice  in  the  matter  wherein  such  writ  shall  be 
applied  for."  The  stat.  3  &  4  V.,  c.  105,  contains  a  similar  enact- 
ment in  §  C)G,  with  respect  to  the  High  Court  of  Justice  in  Ireland. 

§  506.  Although  the  enactments  just  cited  have  not  been 
formally  repealed,  they  have,  so  far  at  least  as  relates  to  civil  pro- 
ceedings m  the  High  Court,  been  to  a  great  extent  virtually  super- 
seded by  the  Rules  of  the  Supreme  Court,  1883;  for  in  all  such 
proceedings,  the  law  respecting  depositions,  and  commissions  to 
examine  witnesses,  is  now  attempted  to  be  codified  by  Order  XXXVII. 
of  those  rules'  It  will,  therefore,  be  convenient  for  the  purpose  of 
facilitating  reference,  to  place  before  the  reader  in  a  collective  form 
the  several  Kules  and  Forms  which  relate  to  that  subject,  though 
many  of  them  will  be  again  referred  to  in  other  parts  of  this  work. 
The  Code  runs  thus: — 

"Order  XXXVII.     II.  Examination  of  Witnesses.'' 

"  R.  5.  The  Court  or  a  Judge  may,  in  any  cause  or  matter  where  it 
shall  appear  necessary  for  the  purposes  of  justice,'^  make  any  order^  for 

'  As  to  the  law  in  Ireland,  see  3  &  4  V.,  c.  105,  Ir.  As  to  when  proof 
may  be  taken  by  commission  under  the  law  of  Scotland,  see  29  &  30  V., 
c.  112. 

''  Bidder  r.  Bridges,  53  L  J  ,  Ch.  479;  L  R.  26  Ch.  D.  1,  S.  C.  There  held 
1st,  that  Court  may  make  an  order  ex  parte,  but  at  peril  of  applicant;  2d,  that 
the  fact  of  a  witness  being  70  years  old  is  prima  facie  good  ground  for  ordering 
his  examination  de  bene  esse;  but  3d,  that  this  rule  will  not  apply  to  a  large 
number  of  witnesses,  except  under  very  special  circumstances. " 

»  No.  35.     A  PP.  K. 

"Order  for  Examixatiox  of  Witnesses  before  Trial." 
[Heading  as  in  Form  1.] 

"Upon  hearing  and  upon  reading  the  affidavit  of  filed 

the  day  of  18         ,  and 

It  is  ordered  that  a  witness  on  behalf  of  the  be  ex- 

amined vird  voce  (on  oath  or  affirmation)  before  the  Master  [or  before 

esquire,  special  examiner],  the  .solicitor  or  agent  giving  to  the 

solicitor  or  agent  notice  in  writing  of  the  time  and  place 

where  the  examination  is  to  take  place. 

And  it  is  further  ordered  that  the  examination  so  taken  be  filed  in  the 
Central  Office  of  the  Supreme  Court  of  Judicature,  and  that  an  office  copy  or 
copies  thereof  may  be  read  and  given  in  evidence  on  the  trial  of  this  cause, 

(3320) 


CHAP,  v.]  ORDERS  FOR  COMMISS.  TO  EXAMINE  WITNESSES.  453 

the  examination  upon  oath  before  the  Court  or  Judge  or  any  officer 
of  the  Court,  or  any  other  person  and  at  any  place,  of  any  witness 
or  person,'  and  may  empower  any  party  to  any  such  cause  or  matter 
to  give  such  deposition  in  evidence  therein  on  such  terms,'  if  any, 
as  the  Court  or  a  Judge  may  direct. 

6.  An  order  for  a  commission^  to  examine  witnesses  shall  be  in 
the  Form  No.  36,*  in  Appendix  K.,  and  the  writ  of  commission 
saving  all  just  exceptions,  without  any  further  proof  of  the  absence  of  the 
said  witness  than  the  affidavit  of  the  solicitor  or  agent  of  the  as  to 

his  belief,  and  that  the  costs  of  this  application  be 

Dated  the  day  of  18     ." 

'  See  also  R.  1  of  same  Order,  cited  post,  ^  1395, 

■•'  See  R.  18,  post,  p.  460. 

•^  If  in  any  case  the  court  or  a  judge  shall  so  order,  there  shall  be  issued  a 
request  to  examine  witnesses  in  lieu  of  a  commission.  Rules  of  Sup.  Ct.,  Oct., 
1884,  R.  6,  which  may  also  be  cited  as  Rules  of  Sup.  Ct,,  1883,  Ord.  XXXVII. 
R.  6a.  The  Forms  1  &  2  in  the  App.  to  the  above  New  Rules,  contain  the 
forms  of  such  order  and  request. ' ' 

*  No.  36.     App.  K. 

"Short  Order  for  Issue  of  Commission  to  Examine  Witnesses." 
\_Headinfj  as  in  Form  1.] 

"Upoii  hearing  and  upon  reading  the  affidavit  of  tiled 

the  day  of  18         ,  and 

It  is  ordered  that  the  be  at  liberty  to  issue  a  commission  for 

the  examination  of  witnesses  on  behalf  at 

And  it  is  further  ordered  that  the  trial  of  this  action  be  stayed  until  the 
return  of  the  said  commission,  the  usual  k)ng   order   to   be   drawn  up,  and 
iinless  agreed  upon  by  the  parties  within   one    week,  to    be   settled   by  the 
Master  \_or  as  the  case  may  he'],  and  that  the  costs  of  this  application  be 
Dated  the  day  of  18     ." 


No.  37.     App.  K. 
"  Long  Order  for  Commission  to  Examine  Witnesses." 
[Heading  as  in  Form  1.] 
"Upon  hearing  and  upon  reading  the  affidavit  of  filed 

the  day  of  18        ,  and 

It  is  ordered  as  follows  : 

1.  A  commission  maj'  issue  direct  to  of  and 

of  commissioners  named  by  and  on  behalf  of  the  and  to 

of        and  commissioners  named  by  and  on  behalf 

of  the  for  the  examination  upon  interrogatories  and  viva  voce  of 

witnesses  on  behalf  of  the  said  and  respectively  at 

aforesaid  ])efore  the  said  commissioners,  or  any  two  of  them,  so  that 

one  commissioner  only  on  each  side  be  present  and  act  at  the  examination. 

2.  Both  the  said  and  shall  be  at  liberty  to  examine 
upon  interrogatories  and  viva  voce  upon  the  subject  matter  thereof  or  arising 
out  of  the  answers  thereto  such  witnesses  as  may  be  produced  on  their  be- 
half, with  liberty  to  the  other  party  to  cross-examine  the  said  witnesses 
upon  cross  interi'ogatories  and  viva  voce,  the  party  producing  the  witness  for 
examination  being  at  liberty  to  re-examine  him  vird  voce;  and  all  such 
additional  vied  voce  questions,  whether  on  examination,  cross-examination,  or 

(3321) 


454-  OllDKR  FOR  COMMISS.  TO  EXAMINK  AVITXESSES.  [pART  II. 

re-examination,  shall  bo  reduced  into  writin<j;,  and,  witli  the  answers  thereto, 
returned  with  the  said  commission. 

3.  Within  days  from  the  date  of  tliis  order  the  solicitors  or  a^^ents 
of  the  said  and  shall  exchange  the  interrogatories  they 
l)roi)Ose  to  administer  to  their  respective  witnesses,  and  shall  also  within 

days  from  the  exchange  of  such  interrogatories,  exchange  copies  of  the 
cross-interrogatories  intended  to  be  administercnl  to  the  said  witnesses. 

4.  days  previously  to  the  sending  out  of  the  said  commission,  the 
solicitor  of  the  said  shall  give  to  the  solicitor 

of  the  said  notice  in  writing  of  the  mail  or  other  conveyance  by 

which  the  commission  is  to  be  sent  out. 

C).  days  previously  to  the  examination  of  any  witness  on  behalf 

of  the  said  or  respectively,  notice  in  writing  signed  by 

any  one  of  the  commissioners  of  the  party  on  whose  1)ehalf  the  witness  is  to 
1)0  examined,  and  stating  the  time  and  place  of  the  intended  examination, 
and  the  names  of  the  witnesses  intended  to  be  examined,  shall  be  given  to 
the  commissioners  of  the  other  party  liy  delivering  the  notice  to  them  person- 
ally, or  by  leaving  it  at  their  usual  place  of  abode  or  business,  and  if  the 
commissioners  of  that  party  neglect  to  attend  pursuant  to  the  notice,  then 
one  of  the  commissioners  of  the  party  on  whose  behalf  the  notice  is  given 
shall  be  at  liberty  to  jiroceed  with  and  take  the  examination  of  the  witness 
or  witnesses  ex  parte,  and  adjourn  any  meeting  or  meetings,  or  continue  the 
same,  from  day  to  day  until  all  the  witnesses  intended  to  be  examined  by 
virtue  of  the  notice  have  been  examined,  without  giving  any  further  or  other 
notice  of  the  subsequent  meeting  or  meetings. 

G.  In  the  event  of  any  witness  on  liis  examination,  cross-examination,  or 
re-examination  producing  any  book,  document,  letter,  paper,  or  Avriting,  and 
refusing  for  good  cause  to  be  stated  in  his  deposition,  to  part  with  the  original 
thereof,  then  a  copy  thereof,  or  extract  therefrom,  certitied  by  the  commis- 
sioners or  commissioner  present  to  be  a  true  and  correct  copy  or  extracts, 
shall  be  annexed  to  the  witnesses'  deposition. 

7.  Each  witness  to  be  examined  under  the  commission  shall  be  examined 
on  oath,  ailirmation,  or  otherwise  in  accordance  with  his  religion,  by  or  before 
the  said  commissioners  or  commissioner. 

8.  Jf  any  one  or  more  of  the  witnesses  do  not  understand  the  English  lan- 
guage (the  interrogatories,  cro.ss-interrogatorics,  and  vied  voce  ([uestions,  if 
any,  being  previously  translated  into  the  language  with  which  he  or  they 
is  or  are  conversant),  then  the  examination  shall  be  taken  in  ICnglish  through 
the  medium  of  an  interpreter  or  interpreters,  to  be  nominated  by  the  com- 
missioners or  coTumissioner,  and  to  be  previously  sworn  according  to  his  or 
their  several  religions  by  or  before  the  said  coinmissioners  or  commissioner 
truly  to  interpret  the  questions  to  be  put  to  the  witn<>ss  or  witnesses,  and 
Ills  and  their  answers  thereto. 

9.  The  (le])osilions  to  1)0  taken  under  and  by  virtue  ui'  the  said  commission 
shall  b(^  sid>scribed  l)y  the  witness  or  witnesses,  and  ))y  the  commissioners  or 
commissioner  who  shall  have  taken  such  depositions. 

10.  The  interrogatories,  cross-interrogatories,  and  depositions,  together  with 
any  docunu'nts  relcrred  to  therein,  or  eertified  copie.i  thereof  or  extracts 
therefrom,  shall  be  sent  to  the  Senior  Master  of  the  >Supreme  Court  of  Judi- 
cature on  or  before  the  day  of  ,  or  such  further  or  other 
day  as  may  be  ordered,  enclosed  in  a  cover  under  the  seal  or  seals  of  the 
said  commissioners  or  commissioner,  and    office   cojnca  thereof  may  be  given 

(3322) 


CHAP,  v.]  COMMISSION  TO  EXAMINE  "WITNESSES.  455 

shall  be  in  the  Form  No.  13  "  in  Appendix  J.,  with  such  variations 
as  circumstances  may  require. 

in  evidence  on  the  trial  of  this  action  by  and  on  behalf   of  the  said 

and  respectively,  saving  all  just  exceptions,  \vithout  any  other 

proof  of  the  absence  from  this  country  of  the  witness  or  witnesses  therein 

named,  than  an  affidavit  of  the  solicitor        or  agent        of  the  said 

or  respectively,  as  to  his  belief  of  the 

11.  The  trial  of  tliis  cause  is  to  be  stayed  until  the  return  of  the  said 
commission. 

12.  The  costs  of  this  order,  and  of  the  commission  to  be  issued  in  pursuance 
hereof,  and  of  the  interrogatories,  cross-interrogatories,  and  depositions  to  be 
taken  thereunder,  together  with  any  such  document,  copy,  or  extract  as  afore- 
said, and  official  copies  thereof,  and  all  other  costs  incidental  thereto,  shall 
be 

Dated  the  day  of  18        ." 


*  No.  13.  App.  J. 

"  CojiMissioN  TO  Examine  "Witxesses." 
[Fleaduig  as  in  Form  1.] 

"  Victoria,  by  the  Grace  of  God,  &c.,  to  of  and 

of  Commissioners  named  by  and  on  behalf  of  the  and 

to  of  and  of  Commissioners  named  by 

and  on  behalf  of  the  greeting:  Know  ye  that  we,  in  contidence 

of  your  prudence  and  fidelity,  have  appointed  you  and  by  these  presents  give 
you  power  and  authority  to  examine  on  interrogatories  and  viva  voce  as 
hereinafter  mentioned  witnesses  on  behalf  of  the  said  and 

respectively  at  before  you  or  any  two  of  you,  so  that  one  Commis- 

sioner only  on  each  side  be  present  and  act  at  the  examination. — And  we 
command  you  as  follows  : 

1.  Both  the  said  and  the  said  shall  be  at  liberty  to 
examine  on  interrogatories  and  viva  voce  on  the  subject  matter  thereof  or 
arising  out  of  the  answers  thereto  such  witnesses  as  shall  be  produced  on 
their  behalf  with  liberty  to  the  other  party  to  cross-examine  the  said  witnesses 
on  cross-interrogatories  and  vivd  voce,  the  party  producing  any  witness  for 
examination  being  at  liberty  to  re-examine  him  vivd  voce ;  and  all  such 
additional  vivd  voce  questions,  whether  on  examination,  cross-examination  or 
re-examination,  shall  be  reduced  into  writing,  and  with  the  answers  thereto 
shall  be  returned  with  the  said  Commission. 

2.  Not  less  than  daj's  before  the  examination  of  any  witness  on 
behalf  of  eitlier  of  the  said  parties,  notice  in  writing,  signed  by  any  one  of  you, 
the  Commissioners  of  the  party  on  whose  behalf  the  witness  is  to  be  examined, 
and  stating  the  time  and  place  of  the  intended  examination  and  the  names  of 
the  witnesses  to  be  examined,  .shall  be  given  to  the  Commissioners  of  the  other 
party  by  delivering  the  notice  to  them,  or  by  leaving  it  at  their  usual  place  of 
abode  or  business,  and  if  the  Commissioners  or  Commissioner  of  that  party 
neglect  to  attend  pursuant  to  the  notice,  then  one  of  you,  the  Commissioners 
of  the  party  on  whose  behalf  the  notice  is  given,  shall  be  at  liberty  to  proceed 
with  and  take  the  examination  of  the  witness  or  witnesses  ex  parte  and 
adjourn  any  meeting  or  meetings,  or  continue  the  same    from   day   to    day 

(3323) 


456  COMMISSION  TO  EXAMINE  WITNESSES  [PART  11, 

7.  Tho  Court  or  a  Judge  may  in  any  cause  or  matter  at  any 
stage  of  the  {)roceediugs  order  the  attendance  of  any  person  for  the 

until  all  the  witnesses  intended  to  be  examined  by  virtue  of  the  notice  have 
been  examined,  -without  giving  any  furtlier  Or  other  notice  of  the  subsequent 
meeting  or  meetings. 

3.  In  the  event  ot  any  witness  on  his  examination,  cross-examination,  or 
re-examination  i>roducing  any  book,  document,  letter,  paper,  or  writing,  and 
refusing  tor  good  cause  to  be  stated  in  his  depositions  to  jiart  with  the  original 
thereof,  then  a  copy  there.jf,  or  extract  therefrom,  certified  by  the  Commis- 
sioners or  Commissioner  present  and  acting,  to  be  a  true  and  correct  copy  or 
extract,  shall  be  annexed  to  the  witnesses'  deposition. 

4.  Each  witness  to  be  examined  under  this  Commission  shall  be  examined 
on  oath,  affirmation,  or  otherwise  in  accordance  with  his  religion,  by  or  before 
the  Commissioners  or  Commissioner  present  at  the  examination. 

5.  If  any  one  or  more  of  the  Avitnesses  do  not  understand  the  English 
language  (the  interrogatories,  cross-interrogatories,  and  viva  voce  questions, 
if  any,  being  previously  translated  into  the  language  with  which  he  or  they 
is  or  are  conversant),  then  the  examination  shall  be  taken  in  English  through 
the  medium  of  an  interpreter  or  interpreters  to  be  nominated  by  the  Commis- 
sioners or  Commissioner  present  at  the  examination,  and  to  be  previously 
sworn  according  to  his  or  to  their  several  religions  by  or  before  the  said 
Commissioners  or  Commissioner  truly  to  interpret  the  questions  to  be  put  to 
the  witness  and  his  answers  thereto. 

6.  The  deijositions  to  be  taken  under  this  Commission  shall  be  subscribed 
by  the  witness  or  witnesses,  and  by  the  Commissioners  or  Commissioner  who 
shall  have  taken  the  depositions. 

7.  The  interrogatories,  cross-interrogatories,  and  depositions,  together  with 
any  documents  referred  to  therein,  or  certified  copies  thereof  or  extracts 
therefrom,  shall  be  sent  to  the  Senior  Master  of  the  Supreme  Court  of  Judi- 
cature on  or  before  the  day  of  enclosed  in  a  cover  under 
the  seals  or  seal  of  the  Commissioners  or  Commissioner. 

8.  Before  you  or  any  of  you,  in  any  manner  act  in  the  execution  hereof, 
you  shall  severally  take  the  oath  hereon  indorsed,  on  the  Holy  Evangelist,  or 
otherwise  in  such  other  manner  as  is  sanctioned  by  the  form  of  your  several 
religions,  and  is  considered  by  you  respectively  to  be  binding  on  your  respec- 
tive consciences.  In  the  absence  of  any  other  Commissioner,  a  Commissioner 
may  himself  take  the  oath. 

And  we  give  you  or  any  one  of  you  authority  to  administer  such  oath  to 
the  other  or  others  of  you. 
Witness,  &c. 
This  writ  was  issued  by,  &c. 


Witnesses'  Oath. 
You  are  true  answer  to  make  to  all  such   questions  as  shall  be  asked  you, 
without  favour  or  affection  to  either  party,  and  therein  you  shall   speak  the 
truth,  the  whole  truth,  and  nothing  but  the  truth.     So  help  j'ou  God. 
Commissioner's  Oath. 
You  [or  I]  shall,  according  to  the  best  of  your   [or  my]   skill    and  know- 

(3324) 


CHAP,  v.]  COM.AIISSION  TO  EXAxMINE  WITNESSES.  457 

purpose  of  producing  any  tvritings  or  other  documents  named  in 
the  order  which  the  Court  or  Judge  may  think  fit  to  be  pi'oduced: 

ledge,  truly  and  faithfully,  and  without  partiality  to  any  or  either  of  the 
parties  in  this  cause,  take  the  examinations  and  depositions  of  all  and  every 
witness  and  witnesses  produced  and  examined  by  virtue  of  the  Commission 
within  written.     So  help  you  [or  me]  God. 

Jxtekpreter's  Oath. 

You  shall  truly  and  faithfully,  and  without  partiality  to  any  or  either  of 
the  parties  in  this  cause,  and  to  the  best  of  your  ability,  interpret  and  trans- 
late the  oath  or  oaths,  affirmation  or  affirmations  which  shall  be  admini.stered 
to,  and  all  and  every  the  questions  which  shall  be  exhibited  or  put  to,  all 
and  every  witness  and  witnesses  produced  before  and  examined  by  the  Com- 
missioners named  in  the  Commission  within  written,  as  lar  forth  as  you  are 
directed  and  employed  by  the  said  Commissioners  to  interpret  and  translate 
the  same  out  of  the  English  into  the  language  of  such  witne.ss  or  witnesses, 
and  also  in  like  manner  to  interpret  and  translate  the  respective  depositions 
taken  and  made  to  such  questions  out  of  the  language  of  such  witness  or 
witnesses  into  the  Engli-sh  language.     So  help  you  God. 

Clerk's  Oath. 

You  shall  truly,  faithfully,  and  without  partiality  to  any  or  either  of  the 
parties  in  this  cause,  take,  writedown,  transcribe,  and  engross  all  and  every 
the  questions  which  shall  be  exhibited  or  put  to  all  and  every  witness  and 
witnesses,  and  also  the  depositions  of  all  and  every  such  witness  and  witnesses 
produced  before  and  examined  by  the  said  Commissioners  named  in  the 
Commission  within  written,  as  far  forth  as  you  are  directed  and  employed 
by  the  Commissioners  to  take,  write  d  )Avn,  transcribe  or  engross  the  said  ques- 
tions and  depositions.     So  help  you  God. 

Direction  of  Interrogatories,  &c.,  when  returned  by  the  Commissioners. 

The  Senior  Master  of  the  Supreme  Court  of  Judicature,  Royal 
Courts  of  Justice,  London." 

No  14.     App.  J. 

"  Commission  to  Examine  Witnesses." 
18         .  {here  put  the  letter  and  monberl. 
' '  In  the  High  Court  of  .Justice, 

Probate  Divorce  and  Admiralty  Division. 

Between  A.B,  Plaintiff 

and 
the  owners  of  the 
Victoria,  by  the  Grace  of  God,  &c.,  to  [state  name  and  address  of   examiner 
or  commissioner  appointed^,  greeting.  Whereas  in  an  action  of  com- 

menced in  Our  said  High  Court  of  Justice  on  behalf  of  against 

,  [and  against  intervening],  the  Judge  has  ordered  a  com- 

mission to  be  issued  for  the  examination  of  witnesses  concerning  the  truth  of 
the  matters  at  issue  in  the  said  cause.  We  therefore  hereby  authorize  you, 
upon  the  day  of  18  at  ,  in  the  presence  of 

(3325) 


458  WITNESSES  EXAMINED  UNDPm  COMMISSION.  [PART  II. 

Provided  that  no  person  shall  be  compelled  to  produce  under  any 
such  order  any  writing  or  other  document  which  he  could  not  be 
compelled  to  produce  at  the  hearing  or  trial. 

8.  Any  person  wilfully  disobeying  any  order  requiring  his 
attendance  for  the  purpose  of  being  examined  or  producing  any 
document  shall  be  deemed  guilty  of  contempt  of  Court,  and  may  be 
dealt  with  accordingly. 

9.  Any  person  required  to  attend  for  the  purpose  of  being 
examined  or  of  producing  any  document,  shall  be  entitled  to  the 
like  conduct  money  and  payment  for  expenses  and  loss  of  time  as 
upon  attendance  at  a  trial  in  Court. 

10.  Where  any  witness  or  person  is  ordered  to  be  examined 
before  any  officer  of  the  Court,  or  before  any  person  appointed  for 
the  purpose,  the  person  taking  the  examination  shall  be  furnished 
by  the  party  on  whose  application  the  order  was  made  with  a  copy 
of  the  writ  and  pleadings,  if  any,  or  with  a  copy  of  the  documents 
necessary  to  inform  the  person  taking  the  examination  of  the  ques- 
tions at  issue  between  the  parties. 

11.  The  examination  shall  take  place  in  the  presence  of  the 
parties,  their  counsel,  solicitors,  or  agents,'  and  the  witnesses  shall 
be  subject  to  cross-examination  and  re-examination. 

12.  The  depositions  taken  before  an  officer  of  the  Court,  or 
before  any  other  person  appointed  to  take  the  examination,  shall  be 
taken  down  in  writing  by  or  in  the  presence  of  the  examiner,  not 


the  solicitors  in  the  said  action,  or  in  the  presence  of  their  or  either  of  their 
lawfully  appointed  substitutes,  or  otherwise  notwithstanding  the  absence  of 
either  of  them,  to  swear  the  witnesses  who  shall  be  produced  before  you  for 
examination  in  the  said  cause,  and  cause  them  to  be  examined,  and  their  de- 
positions to  be  reduced  into  writing.  "We  further  authorize  you  to  adjourn 
(if  necessary)  the  said  examinations  from  time  to  time  and  from  place  to  place, 
as  you  may  find  expedient.  And  We  command  you,  upon  the  examinations 
being  completed,  to  transmit  the  depositions  and  the  whole  proceedings  had 
and  done  before  you,  together  with  this  commission,  to  the  Registry  of  the 
said  Division  of  our  said  Court. 
Witness,  &c. 


E.F., 

Registrar. 


Commission  to  examine 

Witnesses. 
Taken  out  by  ." 

1  How  if  they  do  not  think  fit  to  attend  ?     See  R.  12. 

(3326) 


CHAP,  v.]  WITNESSES  EXAMINED  UNDER  COMMISSION.  459 

ordinarily  by  question  and  answer,  but  so  as  to  represent  as  nearly 
as  may  be  the  statement  of  the  witness,  and  when  completed  shall 
be  read  over  to  the  witness  and  signed  by  him  in  the  presence  of 
the  parties,  or  suck  of  them  as  maij  think  Jit  to  attend.  If  the 
witness  shall  refuse  to  sign  the  depositions,  the  examiner  shall  sign 
the  same.  The  examiner  may  put  down  any  particular  question  or 
answer  if  there  should  appear  any  special  reason  for  doing  so,  and 
may  put  any  question  to  the  witness  as  to  the  meaning  of  any 
answer,  or  as  to  any  matter  arising  in  the  course  of  the  examination. 
Any  questions  which  may  be  objected  to  shall  be  taken  down  by 
the  examiner  in  the  depositions,  and  he  shall  state  his  opinion 
thereon  to  the  counsel,  solicitors,  or  parties,  and  shall  refer  to  such 
statement  in  the  depositions,  but  he  shall  not  have  power  to  decide 
upon  the  materiality  or  relevancy  of  any  question. 

13.  If  any  person  duly  summoned  by  subpoena  to  attend  for 
examination  shall  refuse  to  attend,  or  if,  having  attended,  he  shall 
refuse  to  be  sworn  or  to  answer  any  lawful  question,  a  certificate  of 
such  refusal,  signed  by  the  examiner,  shall  be  filed  at  the  Central 
Office,  and  thereupon  the  party  requiring  the  attendance  of  the 
witness  may  apply  to  the  Court  or  a  Judge  ex  parte  or  on  notice 
fer  an  order  directing  the  witness  to  attend,  or  to  be  sworn,  or  to 
answer  any  question,  as  the  case  may  be. 

14.  If  any  witness  shall  object  to  any  question  which  may  be 
put  to  him  before  an  examiner,  the  question  so  put,  and  the 
objection  of  the  witness  thereto,  shall  be  taken  down  by  the 
examiner,  and  transmitted  by  him  to  the  Central  Office  to  be  there 
filed,  and  the  validity  of  the  objection  shall  be  decided  by  the 
Court  or  a  Judge. 

15.  In  any  case  under  the  two  last  preceding  Rules,  the  Court  or 
a  Judge  shall  have  power  to  order  the  witness  to  pay  any  costs 
occasioned  by  his  refusal  or  objection. 

16.  When  the  examination  of  any  witness  before  any  examiner 
shall  have  been  concluded,  the  original  depositions,  authenticated 
by  the  signature  of  the  examiner,  shall  be  transmitted  by  him  to 
the  Central  Office,  and  there  filed. 

17.  The  person  taking  the  examination  of  a  witness  under  these 
Rules  may,  and  if  need  be  shall,  make  a  special  report  to  the  Court 
touching  such  examination  and  the  conduct  or  absence  of   any 

(3327) 


4G0  WITNESSES  EXAMINED  UNDER  COMMISSION.         [l-ART  11. 

witness  or  other  person  thereon,  and  the  Court  or  a  Judge  may 
direct  such  proceedings  and  make  such  order  as  upon  the  report 
they  or  he  may  think  just. 

18.  Except  where  by  this  Order  otherwise  provided,  or  directed 
by  the  Court  or  a  Jiidge,'  no  deposition  shall  be  given  in  evidence 
at  the  hearing  or  trial  of  the  cause  or  matter  ivithout  ihe  consent  of 
the  party  against  whom  the  same  may  be  offered,  unless  the  Court 
or  Judge  is  satisfied  that  the  deponent  is  dead,  or  beyond  the  juris- 
diction of  the  Court,  or  unable  from  sickness  or  other  infirmity  to 
attend  the  hearing  or  trial,  in  any  of  which  cases  the  depositions 
certified  under  the  hand  of  the  person  taking  the  examination  shall 
be  admissible  in  evidence,  saving  all  just  exceptions,  without  proof 
of  the  signatiire  to  such  certificate. 

10.  Any  officer  of  the  Court,  or  other  person  directed,  to  take  the 
examination  of  any  witness  or  person,  may  administer  oaths. 

20.  Any  party  in  any  cause  or  matter  may  by  subpoena  ad  testi- 
ficandum or  duces  tecum  require  the  attendance  of  any  witness 
before  an  officer  of  the  Court,  or  other  person  appointed  to  take  the 
examination,  for  the  purpose  of  using  his  evidence  upon  any  pro- 
ceeding in  the  cause  or  matter  in  the  like  manner  as  such  witness 
would  be  bound  to  attend  and  be  examined  at  the  hearing  or  trial; 
and  any  party  or  witness,  having  made  an  affidavit  to  be  used  or 
which  shall  be  used  on  any  proceeding  in  the  cause  or  matter,  shall 
be  bound  on  being  served  with  such  subpoena  to  attend  before  such 
officer  or  person  for  cross-examination.' 

21.  Evidence  taken  subsequently  to  the  hearing  or  trial  of  any 
cause  or  matter,  shall  be  taken  as  nearly  as  may  be  in  the  same 
manner  as  evidence  taken  at  or  with  a  view  to  a  trial. 

.  22.  The  practice  with  reference  to  the  examination,  cross- 
examination,  and  re-examination  of  witnesses  at  a  trial,  shall  extend 
and  be  applicable  to  evidence  taken  in  any  cause  or  matter  at  any 
stage.  ^ 

23.   The  practice  of  the  Court  with  respect  to  evidence  at  a  trial, 

'  See  R.  5,  ante. 

^  A  witness  is  not  bound  to  attend  an  examiner,  unless  he  has  been  duly- 
served  with  a  subpoena.     Stuart  v.  Balkis  Co.,  53  L.  J.,  Ch.  791,  per  Chitty,  J. 

'  It  seems  that  the  examiner  may  order  any  witness  to  be  examined  apart 
from  the  others,  even  though  he  be  the  agent  or  solicitor  of  one  of  the 
parties.  In  re  West  of  Canada  Oil  Lands  &  Works  Co.  46  L.  J.,  Cli.  683, 
per  Jessel,  M.  R.  « 

(3328) 


CHAP,  v.]  EXAMINERS  OF  SUPREME  COURT.  461 

when  applied  to  evidence  to  be  taken  before  an  officer  of  the  Court 
or  other  person  in  any  cause  or  matter  after  the  hearing  or  trial, 
shall  be  subject  to  any  special  directions  which  may  be  given  in 
any  case. 

24  No  affidavit  or  deposition  filed  or  made  before  issue  joined 
in  any  cause  or  matter  shall,  w^itho'ut  special  leave  of  the  Court  or  a 
Judge,  be  received  at  the  hearing  or  trial  thereof,  unless  within  one 
month  after  issue  joined,  or  within  such  longer  time  as  may  be 
allowed  by  special  leave  of  the  Court  or  a  Judge,  notice  in  writing 
shall  have  been  given  by  the  party  intending  to  use  the  same  to  the 
opposite  party  of  his  intention  in  that  behalf. 

25.  All  evidence  taken  at  the  hearing  or  trial  of  any  cause  or 
matter  may  be  used  in  any  subsequent  proceedings  in  the  same 
cause  or  matter." 

§  507.  It  cannot  fail  to  be  noticed  by  any  one  who  reads  atten- 
tively the  Rules  just  cited,  that  those  numbered  5  and  7  are 
expressed  in  terms  exceedingly  wide:  and  as  the  powers  conferred 
by  them  are  capable  of  being  applied  in  furtherance  of  oppressive 
and  inquisitorial  proceedings,  it  is  incumbent  on  the  judges  to 
exercise  extreme  caution  before  making  any  order  of  an  unusual 
character  under  either  Rule,  unless  such  order  be  obviously  neces- 
sary for  the  purposes  of  justice.'  In  a  recent  case,"  where  a 
defendant  attempted  to  obtain,  under  rule  7,  an  order  on  a  stranger 
to  produce  for  inspection  some  documents,  which  were  his  property, 
and  in  which  the  applicant  had  no  interest,  the  application  was 
rightly  regarded  as  vexatious,  and  was  promptly  refused. 

§  507a.  The  "  officers  of  the  Court  "  mentioned  in  rule  5  are 
barristers  of  at  least  three  years'  standing,^  appointed  by  the  Lord 
Chancellor  for  five  years,  and  removable  by  him.*  They  are  called 
"Examiners  of  the  Supreme  Court;"  they  must  take  all  the 
examinations  ordered  in  the  Chancery  Division,  unless  the  Court  or 
a  Judge  otherwise  directs^  ;  and  they  may  take  the  examinations  in 


1  Central  News  Co.  v.    East.  News  Tel.   Co.,  53  L.  ,T.,   Q.  B.   236,  per  Ct. 
of  App.  '^  Id. 

3  Rules  of  Sup.  Ct.,  made  4  Feb.,  1884,  Ord.  XXXVII.,  R.  40. 
*  Id.  R.  40.  »  Id.  R.  39. 

(3329) 


4G2  EXAMINATIONS  UNDER  NEW  RULES.  [fART  II. 

any  cause  or  matter  clepeuding  either  in  the  Queen's  Bench 
Division,  or  in  the  Probate,  Divorce,  and  Admiralty  Division,  if  the 
Court  or  a  Judge  so  directs.'  The  examinations,  unless  the  Court 
or  a  Judge  entrusts  the  inquiry  to  one  particular  examiner,^  are 
distributed  by  the  principal  clerk  to  the  registrars  of  the  Chancery 
Division  among  the  whole  body,  "  according  to  regular  and  just 
rotation,  and  in  such  manner  as  to  keep  secret  from  all  persons  the 
rota  or  succession.'^ "  They  are  to  give  appointments  in  writing, 
specifying  the  place  and  time,  not  more  than  seven  days  in  advance, 
''at  which,  subject  to  any  application  of  the  parties,  the  examina- 
tion shall  be  taken;*"  they  are  to  regard  the  convenience  of  the 
witnesses,  and  all  the  circumstances  of  the  case;  ^  and,  subject  to 
such  adjournments  as  they  shall  think  reasonable  or  just,  they 
are  to  proceed  de  die  in  diem ;'^  they  may,  with  like  consent,  ex- 
amine persons  not  named  in  the  order; '  and,  when  the  examination 
is  completed,  they  must  under  their  hands  certify  on  the  original 
depositions  the  number  of  hours  or  days  employed,  and  the  fees 
received.* 


§  508.  It  does  not  fall  within  the  scope  of  this  work  to  furnish  §  473 
minute  directions  as  to  the  course  to  be  pursued  by  parties,  who 
seek  under  these  Acts  or  Rules,  either  for  an  order  to  examine  wit- 
nesses at  home,  or  for  an  order  for  a  commission,  when  the  witnesses 
are  abroad;  but  a  few  of  the  more  important  decisions  may  briefly 
be  noticed.  The  court  or  judge, — for  applications  of,  this  nature 
may  generally  be  made  to  either," — will  not,  except  in  a  case  of 
urgency,  to  prevent  the  defeat  of  justice,'"  make  an  order  either 
for  the  examination  of  witnesses,  or  for  a  commission,  uyitil 
after  issue  lias  been  joined;  for  before  that  step  has  been  taken 
it  cannot  well  be  ascertained  what  witnesses  are  material,  neither 
is    it  easy  to    discover   how   a   false  witness  can  be   indicted  for 

1  Id.  K.  39.  2  Id.  R.  49.  ^  Id.  RR.  41,  42. 

*  Id.  R.  44.  ^  Id.  R.  4.5. 

«  Id.  R.  45,  as  amended  by  Rules  of  Sup.  Ct.,  Oct.,  1884,  R.  7. 

'  Id.  R.  46. 

«  Id.  R.  47,  as  amended  by  Rules  of  Sup.  Ct.,  Oct.,  1884,  R.  8. 

»  See  ante,  g  502,  n.  *. 

"  Finney  v.  Beesley,  17  Q.  B.  86;  Stone  v.  Stone,  31  L.  J.,  Pr.  &  Mat.  136; 
Fischer  v.  Hahn,  13  Com.  B.,  N.  S.  659;  32  L.  J.,  C.  P.  209,  S.  C.  See  Braun 
V.  Mollett,  16  Com.  B.  514;  Brown  v.  Brown,  33  L.  J.,  Pr.  &  Mat.  203. 

(3330) 


CHAI'.  v.]     CONTENTS  OF  ORDERS  FOR  COMMISSIONS.  463 

perjury.'  An  order,  however,  may  be  made  prospectively,  with 
reference  to  a  new  trial,  in  case  the  verdict  already  obtained 
should  beset  aside;"  and  if  the  witness  reside  beyond  the  juris- 
diction of  the  court,  the  application  should  be  made  as  soon  as 
possible  after  issue  joined.^ 

§  509.  The  affidavit  in  support  of  the  motion  should, — except  I  474 
under  special  circumstances,* — name  at  least  some  of  the  witnesses 
proposed  to  be  examined,  or  otherwise  describe  who  they  are;'' 
though  it  is  certainly  unnecessary  to  state  the  names  of  them  all,*^ 
and  possibly  the  court  would  not  require  any  of  them  to  be  specified, 
in  a  case  where  the  pleadings  clearly  showed  that  the  examination 
of  witnesses  was  necessary.'  The  affidavit  should  also  state  that 
the  witnesses  are  material  and  necessary,^  though  it  need  not,  in 
general,  add,  either  that  their  evidence  is  admissible,  or  that  the 
application  is  made  bona  fide,^  or  that  the  party  moving  has  a  good 
case  on  the  merits; '"  but  if  the  granting  the  commission  would 
necessarily  occasion  great  delay,  and  if  the  adverse  affidavits  were  to 
show  grounds  for  assuming  that  the  witness  would  not  be  material 

1  Monde]  v.  Steele,  8  M.  &  W.  300  ,  9  Dowl.  812,  S.  C. ;  Clutterbiick  v. 
Jones,  6  Dowl.  &  L.  251,  per  Patteson,  J.,  Dye  v.  Bennett,  1  L.  M.  &  P.  92, 
n.  a ;  Shaw  v.  Shaw,  31  L.  J  ,  Pr.  &  Mat.  95  ;  2  Swab.  &  Trist.  642,  S.  C. 

"^  Hall  V.  Rouse,  4  M.  &  W.  27,  per  Parke,  B. 

'^  Brydges  r.  Fisher,  4  M.  &  Sc.  458;  Steuart  v.  Gladstone,  b.  R.,  7  Ch. 
D.  394,  per  Fry,  J  ,  47  L.  J.,  Ch.  154,  S.  C. 

*  Cow  V.  Kinnersley.  7  Scott,  N.  R.  892  ;  6  M.  &  Gr.  981  ;  1  Dowl.  &  L. 
906,  S.  C,  where  the  defendant,  who  required  the  commission,  was  an  executri.K, 
and  was  ready  to  bring  the  amount  claimed  into  court  to  abide  the  event. 

^  Gunter  v.  McTear,  1  M.  &  W.  201  ;  4  Dowl.  722,  S.  C.  nom.  Guuter  v. 
McKear  :  Beresford  v.  Easthope,  8  Dowl.  294  :  Dimond  v.  Vallance,  7  Dowl. 
590.  In  Boyce?;.  Rusboro',  2  Ir.  Law  R.,  N.  S.  266,  where  a  commission  was 
applied  for  to  examine  witness  in  Canada,  and  the  affidavit  in  support  of  the 
motion  did  not  give  the  names,  descriptions,  and  residences  of  the  witnesses  ; 
the  court,  in  directing  the  commission  to  issue,  made  an  order  that  the  opposite 
side  should  be  furnished  with  these  particulars  within  a  reasonable  time. 

«  Nadin  v.  Bassett,  L.  R.,  25  Ch.  D.  21,  per  Ct.  of  App. ;  53  L.  J.,  Ch. 
253,  S.  C. 

'  Carbonell  v.  Bessell,  5  Sim.  636  ;  Rougemont  v.  Royal  Ex.  Ass.  Co.,  7 
Ves.  304  ;  M'Hardy  v.  Hitchcock,  11  Beav.  93. 

«  Norton  v.  Melbourne,  3  Bing.  N.  C.  67  ;  3  Scott,  398  ;  5  Dowl.  181,  S.  C; 
Dye  V.  Bennett,  1  L.  M.  &  P.  92  ;  Armour  r.  Walker,  L.  R.  2")  Ch.  D.  673. 

9  Langen  v.  Tate.  L.  R.,  24  Ch.  D.  522,  53  L.  J.,  Ch.  361,  S.  C. 

'»  Baddeley  i'.  Gilmore,  1  M.  &  W.  55  ;  Tyr.  &  Gr.  369,  S.  C. ;  Westmore- 
land V.  Huggins,  1  Dowl.  N.  S.  800. 

(3331) 


4G4  ON    WUAT    AFFIDAVITS    COMMISSIONS    GRANTED.       [pART  II. 

or  necessary/  or  if,  for  any  other  special  reason,  the  court  should 
be  of  opinion  that  the  granting  of  the  application  would  tend  to 
defeat  the  ends  of  justice,'  then,  in  the  exercise  of  its  discretion,  it 
would  probably  not  be  satisfied,  unless  the  affidavit  in  support  of  the 
motion  should  point  out,  not  only  in  what  manner  the  evidence 
would  be  material,  but  also  that  it  would  be  admissible  ;  ^  and  if 
there  were  reason  to  believe  that  the  application  was  made  by  the 
defendant  for  a  sinister  motive,  it  would  either  be  refused,  or,  at 
least,  the  applicant  would  be  ordered  to  bring  the  money  in  dispute 
into  court.*  In  one  case,  where  the  defendant  moved  for  a  com- 
mission to  examine  witnesses  in  New  Zealand,  the  court  refused 
to  interfere,  unless  an  affidavit  could  be  produced  from  his  solicitor, 
showing  that  the  evidence  to  be  given  by  the  persons  proposed 
to  be  examined  was  material  and  necessary  to  the  defence  of  the 
action.^  The  affidavit  must  further  disclose,  either  that  the  wit- 
ness is  out  of  the  jurisdiction  of  the  court,*^  or  that  he  will  be 
so  at  the  time  of  the  trial,  being  about  to  leave  the  country;'  or 
that  he  is  in  such  a  precarious  state  of  health  as  to  render  it 
highly  probable  that  he  will  be  unable  to  attend  the  trial.^ 

§  510.    Although    the    judges  are  empowered    by    these    Rules    §  475 
to  grant  commissions  to  examine  parties  to  the  record  who  are 
resident  abroad," — for  such    persons  are  now,    by  virtue  of  Lord 

1  Dye  V.  Bennett,  1  L.  M.  &  P.  92  j  Langen  v.  Tate,  L.  R.  24  Ch.  D.  522  ; 
53  L.  J.,  Ch.  301,  S.  C. 

2  In  re  Boyce,  Crofton  v.  Crofton,  li,  R.,  20  Cli.  D.  GTO;  51  L.  J.,  Ch.  660, 
S.  C;  In  re  The  Imper.  Laud  Co.  of  Marseilles,  37  L.  T.,  N.  S.  589;  Berdan 
V.  Greenwood,  L.  R.,  20  Ch.  D.  704,  n.;  a.s  explained  by  Cotton,  L.  J.,  in 
Armour  n.  Walker,  L.  R.,  25  Ch.  D.  070.  Lawson  v.  Vacuum  Brake  Co.,  L. 
R.,  27  Ch.  D.  137,  per  Ct.  of  App. 

^  Lloyd  V.  Key,  3  Dowl.  253,  per  Parke,  B. ;  I>ane  i'.  Bagshaw,  16  Com. 
B.  576.  *  Sparkes  v.  Barrett,  5  Scott,  402. , 

^  Healey  v.  Young,  2  Com.  B.  702  ;  Bany  v.  Barclay,  15  Com.  B.,  N.  S.  849. 

«  Norton  v.  Melbourne,  3  Bing.  N.  C.  67  ;  3  Scott.  398  ;  5  Dowl.  181,  H.  C. 

7  Pirie  i\  Iron,  8  Bing.  143  ;   1  M.  &  Sc.  223  ;  1  Dowl,  2.52,  S.  C. 

«  Abraham  r.  Newton,  8  Bing.  274  ;  1  Dowl.  200  :  1  M.  &  Sc.  384,  S.  C, 
nom.  Abraham  v.  Norton  ;  Pond  v.  Dimes,  3  M.  <fe  Sc.  161  ',  2  Dowl,  730, 
S.  C;  Davis  i'.  Lowndes,  6  Scott,  738  ;  7  Dowl.  101,  S.  C.  In  this  last  case 
the  affidavit  of  a  medical  man  was  required. 

«  Nadin  v.  Bassett,  53  L.  .!.,  Ch.  253,  per  Ct.  of  App.;  L.  R.,  25  Ch.  D.  21, 
S.  C;  Codd  v.  Donnelly,  9  Ir.  Law  R.,  N.,  S.  465  ;  Walker  v.  Bennett,  I.  R. 
5  C.  L.  366.  In  this  last  case  the  court,  on  the  application  of  a  plaintiff 
residing  in  America,  issued  a  commission  to  examine  him  on  his  own  behalf. 

(3332j 


CHAP,  v.]  EXAMINATIONS  TAKEN  UNDER  COMMISSIONS.        '         465 

Brougham's  Act/  competent  witnesses, — it  is  clear,  that  motions 
for  this  purpose  ought  not  to  be  lightly  entertained,  especially 
when  made  on  behalf  oi:  the  party  who  is  sought  to  be  examined. 
In  a  case,"  where  this  question  was  under  discussion  in  the 
Queen's  Bench,  that  court  very  properly  determined  that  the 
application  could  not  be  granted,  unless  it  were  supported"  by 
affidavits  clearly  showing  that  the  commission  would,  under  the 
circumstances,  be  conducive  to  the  due  administration  of  justice; 
and  Lord  Campbell  dryly  remarked,  that  a  less  stringent  rule 
would  inevitably  lead  to  the  pernicious  practice  of  parties  going 
abroad  to  avoid  the  risk  of  cross-examination  in  open  court.  In 
another  case  where  the  plaintiif  resided  in  New  Zealand,  and  the 
question  to  be  decided  turned  on  his  personal  identity,  the  court, 
- — while  appointing  at  his  instance  examiners  to  take  his  evidence 
in  New  Zealand, — gave  special  directions  that,  as  his  presence  in 
England  was  not  shown  to  be  practically  impossible,  his  deposition, 
though  taken,  should  not  be  read  at  the  trial  without  consent,  unless 
he  was  present  in  court  ready  to  be  cross-examined  viva  voce.  ^ 

§  511.  In  the  Form  *  given  by  the  New  Rules  for  a  commission  ?  476 
to  examine  witnesses,  a  clause  is  introduced  requiring  the  com- 
missioners to  be  sworn.  It  may  be  doubtful,  however,  whether  this 
clause  would  in  all  cases  be  deemed  essential,  for  on  several  occasions, 
under  the  old  law,  such  a  clause  has  been  omitted,  where,  Iq  order  to 
enforce  the  attendance  of  witnesses,  the  commission  has  been  directed 
either  to  the  judges  of  a.foreign  court, ^  or  to  the  foreign  court  itself.*^ 
From  these  cases,  as  well  as  from  others,^  it  is  now  perfectly  clear 
that  commissions  may  be  granted  to  examine  witnesses,  while 
resident  in  countries  beyond  the  dominion  of  the  British  Crown. 

1  14&15  v.,  c.  99. 

2  Castelli  v.  Groom,  18  Q.  B.  490.  See  Braun  v.  Mollett,  16  Com.  B.  514; 
Fischer  v.  Hahn,  13  Com.  B.,  N.  S.  659;  32  L.  J.,  C.  P.  209,  S.  C. 

3  Nadin  v.  Bassett,  L.  E.,  25  Ch.  D.  21,  per  Ct.  of  App.;  53  L.  J.,  Ch.  253, 
S.  C.  See  Armour  v.  Walker,  L.  R.,  25  Ch.  D.  673;  53  L.  J.,  Ch.  413,  S.  C, 
per  Ct.  of  App.  *  See  F.  13,  par.  8,  App.  J.,  cited  ante,  p.  455,  n.  ^. 

*  Clay  V.  Stephenson,  3  A.  &  E.  807;  5  N.  &  M.  318,  S.  C,  Ponsford  v. 
O'Connor,  5  M.  &  ^Y.  673;  7  Dowl.  866,  S.  C. ;  Lumley  v.  Gye,  3  E.  &  B.  114. 
See,  also,  Boelen  v.  Melladew,  10  Com.  B.  898. 

«  Fischer  v.  Sztaray,  27  L.  J.,  Q.  B.  239;  S.  C.  nom.  Fischer  v.  Izataray,  E. 
B.  &  E.  321. 

^  Duckett  t\  Williams,  1  C.  «&  J.  510;  1  Dowl.  291,  S.  C. 

(3333; 


46G  EXAMINATIONS  TAKEN  UNDER  COMMISSIONS.  [PART  II. 

§  512.  In  order  to  render  the  depositions  taken  under  a  com-  x  47(5 
mission  available,  the  evidence  must  be  such,  in  substance,  as  woiild 
be  received  according  to  the  English  law,  and  if  at  the  trial  it 
should  appeal",  either  on  the  face  of  the  depositions,  or  by  extrinsic 
proof,  that  the  commissioners  have,  after  due  objection  taken,' 
admitted  illegal,  or  rejected  legal,  evidence,  the  judge  will,  it  seems, 
be  empowered,  in  the  exercise  of  his  discretion,  to  suppress  the 
depositions  either  wholly  or  in  part." 

§  513.  The  commissioners  must  substantially  follow  the  in-  ?  477 
structions  which  they  have  received  by  the  instrument  appointing 
them,  though  the  court  will  not  look  out  critically  for  objections 
to  their  conduct,  but  will  rather  in  their  favour  presume  that  they 
have  discharged  their  duty.^  Thus,  where  a  commission,  directed 
to  the  judges  of  a  foreign  court,  required  that  after  the  examinations 
had  been  taken,  the  same  should  be  transmitted  to  this  country, 
it  was  held  insufficient  to  send  mere  copies  of  them;*  but  where 
commissioners  for  the  examination  of  witnesses  abroad  were 
directed  to  reduce  the  examinations  into  writing  in  the  English 
language,  and  to  swear  an  interpreter  to  translate  the  oath, 
interrogatories,  and  depositions,  the  court  held  that  the  com- 
mission was  well  executed  by  the  return  of  depositions,  which 
had  originally  been  taken  down  in  the  foreign  language,  and  six 
weeks  afterwards  had  been  translated  by  the  interpreter  into 
English.^  So,  when  the  commission  contained  a  direction  that 
the  witnesses  should  be  examined  apart  from  each  othei",  the 
court  presumed  that  the  commissioners  had  complied  with  this 
order,  although  their  return  was  silent  on  the  subject.*'  Possibly 
however,  the  court  would  not  feel  justified  in  pi'esuming  that  com- 


1  Robinson  v.  Davies,  L.  E.,  5  Q.  B.  D.  26;  49  L.  J.,  Q.  B.  218,  S.  C. 

2  Lumley  v.  Gye,  3  E.  &  B.  114. 

»  Atkins  V.  Palmer,  4  B.  &  A.  380,  per  Abbott,  C.  J.;  Greville  v.  Stulz,  11 
Q.  B.  1004,  per  Ld.  Denman;  Hitchins  v.  Hitchins,  35  L.  J.,  Pr.  &  Mat.  69;  1 
Law  Rep.,  P.  &  D.  153,  S.  C;  Grill  v.  Gen.  Iron  Screw  Collier  Co.,  1  Law  Rep. 
C.  P.  600;  35  L.  J.,  C.  P.  321;  1  H.  &  R.  654,  S.  C;  Hodges  v.  Cobb,  36  L.  J., 
Q   B.  265;  2  Law  Rep.,  Q.  B.  652;  8  B.  &  S.  583,  S.  C. 

*  Clay  V.  Stephenson,  7  A.  &  E.  185;  2N.  &  P.  189,  S.  C. 

5  Atkins  V.  Palmer,  4  B.  &  A.  377;  R.  v.  Douglas,  13  Q.  B.  42. 

^  Simms  «.  Henderson,  11  Q.  B.  1015. 

(3334) 


CHAP,  v.]  DEPOSITIONS,    WHEN  ADMISSIBLE.  467 

missioners  had  taken  the  oaths  prescribed  to  them  before  acting.' 
When  documentsi  have  been  produced  in  evidence  before  the  com- 
missioners, it  will  now  suffice  to  transmit  with  the  depositions 
either  the  originals  or  certified  copies  or  extracts;^  and  attention 
is  drawn  to  this  rule,  because  a  more  stringent  one  used  to 
prevail.^ 

§  514.  When  a  commission  to  take  evidence  is  directed  to  a 
court,  it  is  of  course  desirable  that  the  court  .should  be  rightly 
named.  A  slight  error  in  the  description,  however,  will  not  in- 
validate the  commission,  provided  it  be  not  of  such  a  nature  as  to 
render  it  really  doubtful  what  tribunal  was  intended  to  have  been 
addressed.* 


§  516.  It  will  be  seen  that,  under  the  above  Rules,  ^  depositions  ?  479 
are  as  a  general  rule  rendered  admissible  only  in  one  or  other  of 
four  events.  First,  if  the  opposite  party  co?isen/s ;  secondly,  if  the 
witness  be  proved  to  be  dead ;  thirdly,  if  he  be  shown  to  be  beyond 
the  jurisdiction  oi  the  court; '^  and,  lastly,  if  it  appear  that,  from 
sickness  or  infirmity, — which  terms  do  not  necessarily  mean  an 
includable  maladj^,  but  will  be  satisfied  by  any  grave  illness,^ — he 
cannot  attend  the  trial.  It  is  true  that,  by  virtue  of  Rule  S,'*  none 
of  these  conditions  are  now  absolutely  binding.for  the  judge  is  thereby 
clothed  with  power  to  order  depositions  to  be  given  in  evidence  in 
any  case,  quite  irrespective  of  the  conditions  and  in  spite  of  them 
all.  Still,  that  power  must  be  guided  by  a  judicial  discretion,  and 
the  judge  would  be  more  bold  than  wise,  who  should  set  at  nought 
those  safeguards  which  have  hitherto  been  deemed  essential  to  the 

1  Brydges  v.  Branfill,  12  Sim.  334. 

2  See  F.  13,  par.  3  &  7,  App.  J.,  cited  ante,  p.  456. 
2  R.  V.  Douglas,  1  C.  &  Kir.  670. 

*  Wilson  V.  Wilson,  L.  R.,  9  P.  D.  8.  *  R.  18,  cited,  ante,  ?  506. 

®  By  the  Scotch  law,  when  a  Avitness  residhuj  abroad  is  examined  under  a 
commission,  his  deposition  may  be  read  Avithout  proving  at  the  trial  that  he  is 
then  absent;  and  the  onus  of  showing  that  he  is  within  the  jurisdiction  rests 
on  the  objecting  party.  Sutton  v.  Ainslie,  1  Macq.  Sc.  Cas.  H.  of  L.  29i).  The 
same  doctrine  has  been  recognised  by  Sir  C.  Cresswell  in  the  Matrimonial 
Court.  Pollack  v.  Pollack,  and  Mills  v.  Mills,  30  L.  J.,  Pr.  &  Mat.  183;  2 
Swab.  &  Trist.  310,  S.  C. 

'  D.  of  Beaufort  v.  Crawshay,  35  L.  J.,  C.  P.  342;  1  Law  Rep.,  C.  P.  699; 
and  1  H.  &  R.  638,  S.  C. 

8  Cited  ante,  ?  506. 

9  LAW  OF  EVID. — v.  II.  (3335) 


468  DEPOSITIONS,   WHEN    ADMISSIBLE.  [PART  II. 

due  administration  of  justice.'  It  is  probable,  therefore,  that  in 
practice,  the  admissibility  in  evidence  of  depositions  will  still,  in 
the  absence  of  consent, — as  formerly, — depend  on  the  capability  of 
the  witness'  attendance  at  the  trial ;  -  and  this  view  of  the  law  is  con- 
siderably strengthened  by  a  proviso  contained  in  Eule  1,  of  the  same 
Order,  which  limits  the  admissibility  of  affidavits,  by  declaring  that 
"  where  it  appears  to  the  court  or  judge  that  the  other  party  bond  fide 
desires  the  production  of  a  witness  for  cross-examination,  and  that 
such  ivitness  can  be  produced,  an  order  shall  not  be  made  authorising 
the  evidence  of  such  witness  to  be  given  by  affidavit."  ^ 

§  517.  Assuming,  then,  the  law  to  be  as  stated  above,  the  ques-  §  -i^O 
tion  remains.  How  is  the  incapacity  of  the  witness  to  attend  the  trial 
to  be  proved?  As  the  evidence  on  that  point  is  exclusively  addressed 
to  the  judge,  a  doubt  has  been  raised  as  to  whether  affidavits  will 
not  be  admissible  in  lieu  of  the  ordinary  viva  voce  testimony;  and 
on  one  occasion  Chief  Baron  Pollock  received  the  affidavit  of  a 
medical  man,  as  sufficient  proof  of  the  sickness  of  a  deponent 
to  let  in  his  deposition.*  This  course,  however,  thoiigh  highly 
convenient,  is  of  questionable  legality,"  and  the  doubt  on  the  subject 
has  not  been  cleared  up  by  the  New  Rules.  In  the  Rules  themselves 
no  reference  is  made  to  the  matter,  and  the  only  two  Forms,  which 
allude  to  it,  do  so  in  language  inconsistent  and  obscure.  In  the 
Order  **  for  a  commission  to  examine  witnesses,  a  clause  is  inserted, 
that  the  depositions  may  be  given  in  evidence,  "without  any  other 
proof  of  the  absence  from  this  country  of  the  witness  or  witnesses 
therein  named,  than  an  affidavit  of  the  solicitor  or  agent  of  the 

^  See  Warner  v.  Mosses,  50  L.  J.,  Ch.  29,  per  Jessel,  M  R.,  in  Ct.  of  App. ; 
L.  R.,  16  Ch.  D.  102,  S.  C;  Bidder  v.  Bridges,  L.  R.,  26  Ch.  D.  1,  15;  53 L.  J., 
Ch.  479,  486,  S.  C. 

^  See  Bagot  r.  Bagot,  1  L.  R.  Ir.,  1. 

=*  See  Nadin  v.  Bassett,  L.  R.,  25  Ch.  D.  21,  per  Ct.  of  App. 

*  Knight  V.  Camphell,  Guildford  Summer  Ass.  1848,  MS. 

^  The  point  was  again  raised  and  left  undecided  in  the  case  of  the  D.  of 
Beaufort  v.  Chawshay,  35  L.  J.,  C.  P.  342;  1  Law  Rep.,  C.  P.  699;  and  1  H. 
&  R.  638,  S.  C.  There.  Willes,  J.,  who  seemed  inclined  to  support  the  ruling 
of  the  chief  Baron,  referred  to  R.  v.  Ryle,  9  M.  &  W.  227;  but  that  case, 
on  careful  examination,  will  be  found  to  throw  a  most  treacherous  light  on 
the  subject,  relating,  as  it  does,  to  a  mere  ex-parte  proceeding.  See,  also, 
Carruthers  r.  Graham,  C.  &  Marsh.  5,  per  Ld.  Denraan;  Robin.son  v.  Markis, 
2  M.  &  Rob.  375,  per  Ld.  Abinger;  and  ante,  §^  473,  475. 

^  F.  37,  par.  10,  App.  K.,  cited  ante,  p.  455. 

(3336) 


CHAP,  v.]      C03IMISSI0NS  FROM  COURT  OF  PROBATE  OR  DIVORCE.      469 

said  as  to  bis  belief  of  the  ."     This  so  far  as  it 

goes  is  clear,  but  it  deals  simply  with  the  case  of  the  witness  being 
out  of  the  jurisdiction  of  the  Court.  Under  the  Order,'  however, 
for  examining  witnesses  before  the  examiner,  the  depositions  of 
any  witness  may  be  given  in  evidence  on  the  trial  of  the  cause, 
"  without  any  further  proof  of  the  absence  of  the  said  witness  than 
the  affidavit  of  the  solicitor  or  agent  of  the  as  to  his 

belief."  Here  it  will  be  seen  that  the  term  "absence"  has  a 
more  indefinite  signification  than  in  the  former  Order,  and  it  is  not 
unlikely  that  the  Judges  may  interpret  it,  as  including  an  absence 
from  the  court  in  consequence  of  death  or  illness,  as  well  as  an 
absence  from  the  country.  However  this  may  be,  the  question 
whether  an  affidavit,  made  by  a  person  who  is  neither  a  solicitor  or 
agent  in  the  cause,  is  or  is  not  admissible  to  let  in  secondary 
evidence  of  depositions,  remains  to  be  decided  in  accordance  with 
the  principles  of  the  common  law;  and  the  point  raised  in  the 
early  part  of  this  sectioa  is  still  left  in  doubt. 

§  518.  All  the  provisions  of  the  Acts  of  13  G.  3,  c.  63,  1  W.  4,  ^  480 
c.  22,-  and  3  &  4  Y.,  c.  105,  Ir.,  which  relate  to  the  examination  of 
witnesses  under  the  commissions  and  orders  of  what  is  now  the 
High  Court,  have  been  extended  to  all  suits  and  proceedings  on  the 
Revenue  side  of  the  Queen's  Bench  Division.^  They  have  also  been 
made  applicable  to  the  Probate  and  Divorce  Division,  in  England,* 
and  to  the  corresponding  Courts  in  Ireland.  Each  of  the  statutes 
creating  these  courts  contains  an  enactment,  which  provides,  that,^ 
"  where  a  witness  is  out  of  the  jurisdiction  of  the  court,  or  where 
by  reason  of  his  illness  or  from  other  circumstances,  the  court  shall 
not  think  to  enforce  the  attendance  of  the  witness  in  open  coiirt, 
it  shall  be  lawful  for  the  court  to  order  a  commission  to  issue  for 


^  F.  35,  App.  K.,  cited  ante,  p.  453. 

^  Many  of  the  sections  of  this  Act  are  repealed  by  46  &  47  Y.,  c.  40,  but 
the  repeal  does  not  affect  the  incorporations  here  referred  to.  See  ?  5  of  Act, 
subs,  (c) 

^  22  &  23  v.,  c.  21,  ^  16.  See,  as  to  the  former  law,  Att.-Gen.  v.  Bovet,  15 
M.  &  ^\.  60. 

*  See  Rules  in  Div.  &  Mat.  Causes,  rr.  132—137,  l98.  Also,  F.  14,  App.  J., 
cited,  ante,  p.  457. 

^  20  &  21  v.,  c.  77,  ?  32;  20  Sc  21  V.,  c.  79,  §  37,  Jr.;  and  20  &  21  V.,  c.  85, 
^  47.     See  also  33  &  34  Y.,  c.  110,  §  24,  Ir. 

(3337) 


470     EXAMINATIONS  IN  BANKRUPTCY — IN  COUNTY  COURTS.     [PART  II. 

the  examination  of  such  witness  on  oath,  upon  interrogatories  or 
otherwise,  or  if  the  witness  be  within  the  jurisdiction  of  the  court, 
to  order  the  examination  of  such  witness  on  oath,  upon  interroga- 
tories or  otherwise,  before  any  officer  of  the  said  court,  or  other 
person  to  be  named  in  such  order  for  the  purpose."  '  The  section 
then  proceeds  to  clothe  the  court  with  all  the  powers  vested  in  the 
Courts  and  Judges  by  the  Acts  just  cited.'^ 

§  519.  The  legislation  on  this  subject,  so  far  as  it  relates  to  the  §  480a 
Courts  of  Bankruptcy  in  England,  is  somewhat  bald;  for  the  only 
enactments  in  reference  to  the  matter  are  contained  either  in  §  27, 
eubs.  0,  or  in  §  105,  subs.  5,  of  the  Act  of  1883.^  The  first  section 
just  named  simply  empowers  the  court,  if  it  think  fit,  to  "  order, 
that  any  person,  who  in  England  would  be  liable  to  be  brought 
before  it"  with  the  view  of  discovering  the  debtor's  property, 
"shall  be  examined  in  Scotland  or  Ireland,  or  in  any  other  place 
out  of  England."  The  other  section  enacts,  in  language  provok- 
ingly  vague,  that,  "  subject  to  general  rules,  the  court  may  in  any 
matter  take  the  whole  or  any  part  of  the  evidence  either  viva  voce, 
or  by  interrogatories,  or  upon  affidavit,  or  by  commission  abroacV^ 
The  only  Bankrupt  Eules  bearing  on  the  subject  are  r.  58,  under 
which  the  court  may  empower  any  party  to  any  matter,  "  where  it 
shall  appear  necessary  for  the  purpose  of  justice,"  to  give  deposi- 
tions in  evidence  on  such  terms  as  the  court  may  direct;  and  r.  60, 
which  provides,  that  "an  order  for  a  commission  to  examine  wit- 
nesses, and  the  writ  of  commission  shall  follow  the  Forms  *  for  the 
time  being  in  use  in  the  High  Court,  with  such  variations  as 
circumstances  may  require." 

§  520.  The  County  Court  rules  on  the  same  subject  are  not  much 
more  satisfactory  than  those  which  are  recognised  in  the  Bank- 
ruptcy Court.     They  will  be  found  in  Order  XIV.  of  the  Rules  of 


'  See  Brown  v.  Brown,  .38  L.  J.,  Pr.  t<t  Mat.  78;  1  Law  Eep.,  P.  &  D.  720, 
S.  C. 

'  See,  also,  the  rules  of  March,  1874,  for  the  Ct.  of  Proh.  in  Eng.,  rr.  116 — 
12.3,  and  Form  31.  Also,  the  rules  of  1865  for  the  Ct.  of  Div.  &  Mat.  Causes, 
rr.  129—1.37,  Form  20. 

M6  &  47  v.,  c.  52.  "  See  ante,  pp.  453,  455. 

(3338) 


CHAP,  v.]  INTERROGATORIES  UNDER  RULES  OF  1883.  471"^ 

1875.  Rule  7  of  that  Order  provides,  that  "in  executing  any  order 
made  under  these  rules,'  or  under  section  53,  of  'The  Common 
Law  Procedure  Act,  1854,'^  the  registrar,  or  his  clerk  in  his  pre- 
sence, shall  transcribe  the  answers  given  by  the  witnesses  examined 
before  him,  and  the  registrar  shall  read  over  the  answers  so  tran- 
scribed, and  the  witness  shall  sign  his  name  at  the  foot  thereof,  and 
the  registrar  shall  thereupoa  file  the  same  as  the  deposition  of  such 
witness."  Rule  8  then  provides,  that  "  upon  the  application  of  a 
party  desirous  to  examine  a  witness  residing  out  of  the  jurisdiction 
of  the  court,  the  judge  may,  if  he  thinks  tit,  appoint  the  registrar 
of  the  court  within  the  district  of  which  such  witness  resides  to 
take  the  examination  of  such  witness,  who  shall  take  the  same  in 
the  manner  provided  by  the  last  preceding  rule,  and  transmit  it  by 
post  to  the  registrar  of  the  court  in  which  the  action  is  pending." 
Rule  9  further  provides,  that  "when  it  shall  be  necessary  to  examine 
a  witness  de  bene  esse,  application  upon  affidavit  shall  be  made  to 
the  judge  or  registrar  to  appoint  an  examiner  for  that  purpose  ;" 
but  this  rule — standing  alone  as  it  does — would  seem  to  be  mere 
waste  paper.  Rule  10  is  also  sufficiently  funny,  for  it  explains  to 
the  suitor  that  "  affidavits  and  depositions  shall  be  read  as  the  evi- 
dence of  the  person  by  whom  they  are  used.''''  It  would  indeed  be 
odd  if  this  were  not  the  case. 

§  521.  Between  the  years  1854  and  1875  many  Rules  were  framed 
either  by  the  Legislature  or  the  judges,  with  the  view  of  enabling 
litigants,  before  the  actual  trial  took  place,  to  scrape  the  consciences 
of  their  opponents  by  means  of  interrogatories.''  It  is  unnecessary 
here  to  describe  the  machinery  by  which  that  object  was  sought  to 
be  attained,  since  the  law  on  the  subject  is  now  embodied  in  Order 
XXXL  of  the  Rules  of  the  Supreme  Court,  1883. 


'  The  only  x\\\e  applicable  would  seem  to  be  rule  8,  cited  infra. 

2  17  &  18  v.,  c.  125. 

M7&  18  v.,  c.  125,  ??  51—57-,  38  &  39  V.,  c.  77,  Ord.  xxxi.  For  cor- 
responding provisions  relative  to  England,  see  19  &  20  V.,  c.  102,  |?  56 — 62  ; 
40  &  41  v.,  c.  77,  Jr.  &  Rules.  Similar  powers  were  also  extended  to  the 
old  Court  of  Admiralty,  whether  for  England,  see  24  &  25  V.,  c.  10,  ^  17, 
repealed  by  44  &  45  V.,  c.  59;  or  for  Ireland,  see  30  &  31  V.,  c.  114, 
?  41,  Jr. 

(3339) 


472  INTERROGATORIES  UNDER  RULES  OF  1883.  [PART  II. 

§  522.  Rule  1  of  iluit  Order  provides  that,  "in  any  action  where 
relief  by  way  of  damages  or  otherwise  is  sought  on  the  ground  of 
fraud  or  breach  of  trust,  the  plaintiff  may  at  any  time  after  deliver- 
ing his  statement  of  claim,'  and  a  defendant  may  at  or  after  the 
time  of  delivering  his  defence,  icithout  any  order  for  that  purpose, 
and  in  every  other  cause  or  matter  the  plaintiff  or  defendant  may 
by  leave  of  the  court  or  a  judge,  deliver  interrogatories"  in  writing 
for  the  examination  of  the  opposite  parties,, or  any  one  or  more  of 
such  parties  ;  and  such  interrogatories  when  delivered  shall  have  a 
note  at  the  foot  thereof,  stating  which  of  such  interrogatories  each 
of  such  persons  is  required  to  answer:  Provided  that  no  party  shall 
deliver  more  than  one  set  of  interrogatories  to  the  same  party  with- 
out an  order  for  that  purpose  :  Provided  also  that  interrogatories, 
which  do  not  relate  to  any  matters  in  question  in  the  cause  or 
matter,^  shall  be  deemed  ii^elevant,  notwithstanding  that  they 
might  be  admissible  on  the  oral  cross-examination  of  a  witness." 

§  522a.  Although,  under  the  first  claiase  of  the  above  rule,  the 
plaintiff",  in  cases  where  relief  is  sought  "  on  the  ground  of  fraud  or 
breach  of  trust,"  would  seem  to  be  entitled  to  deliver  interrogatories 

'  Harbord  v.  Mouk.  L.  11.,  9  Ch.  D.  616,  per  Jessel,  M.  R.  But  see  Mercier 
V.  Cotton,  L.  E.,  1  Q.  B.  D.  442. 

^  The  Form,  as  given  in  the  rules,  is  scarcely  as  valuable  as  might  have 
been  expected,  and  the  more  so  as  a  special  rule  has  been  deemed  necessary 
declaring  that  interrogatories  may  be  in  that  form,  "  with  such  variations  as 
circumstances  may  require."  See  R.  4,  and  Form  6,  Appendix  B.,  which  is 
as  follows : — 

"  In  the  High  Court  of  Justice,  18  [Here  put  the  letter  and  number. \ 

Division. 

Between  A.  B.,  jilaintiff, 
and 
C.  D.,  E.  F.,  &  G.  H.,  defendants. 
Interrogatories  on  behalf  of  the  above-named  [plaintiff,  or  defendant,  C.  D.] 
for   the   examination   of  the   above-named    [defendants,    E.    F.  &  G.    H.,  or 
])laintiff.] 

1.  Did  not,  &c. 

2.  Has  not,  &c. 

[The  defendant  E.  F.  is  required  to  answer  the  interrogatories  numbered  .] 

[Tlie  defendant  G.  H.  is  required  to  anfnver  the  interrogatories  numbered  .] 

'  As,  for  instance,  questions  which  go  merely  to  tlie  credit  of  the  party,  or 
which  do  not  otherwise  tend  to  prove  or   disprove   any  material    matter  in 

litigation.     Allhusen  t.  Labouchere,  L.  R,,  3  Q.  B.  D.  654,  per  Ct.  of  App.; 
47  L.  J.,  Q.  B.  819,  S.  C. 

(3340) 


CHAP,  v.]  INTERROGATOKIES  UNDER  RULES  OF  1883.  473 

"at  any  time  after  delivering  his  statement  of  claim,"  it  is  still 
doubtful  whether  he  can  iu  fact  take  that  step  before  the  delivery  of 
the  defence,  without  incurring  serious  risk;  for  the  defendant,  as 
will  be  seen  pi-esently,'  may  object  to  answering  on  the  ground  that 
the  matters  inquired  into  were  not  material  until  the  natui'e  of  the 
defence  was  made  known,  and  the  judges,  in  such  a  case,  would 
probably  uphold  the  objection,  and  the  plaintiff  would  be  mulct  in 
costs." 


§  523.  The  power  conferred  on  the  judges  of  granting  leave  for 
the  delivery  of  interrogatories  is  not  limited  by  the  Rule  to  any 
stage  of  the  proceedings,  and  may  consequently,  as  it  would  seem, 
be,  in  strict  law,  exercised  at  any  time;  but  still  it  is  likely  that, 
in  actual  practice, — except  under  special  circumstances  amounting 
almost  to  a  case  of  urgent  necessity,^ — leave  will  not  be  granted  to 
a  plaintiff  before  he  has  put  in  his  statement  of  claim,  or  to  a  de- 
fendant before  he  has  put  in  his  defence.*  Be  that  as  it  may. 
Rule  2  specially  directs,  that,  "  in  deciding  upon  any  application 
for  leave  to  exhibit  interrogatories,  the  court  or  a  judge  shall  take 
into  account  any  offer,  which  may  be  made  by  the  party  sought  to 
be  interrogated,  to  deliver  particulars,  or  to  make  admissions,  or  to 
produce  documents  relating  to  the  matters  in  question  or  any  of 
them." 

§  524.  In  using  the  term  "opposite  parties"  to  denote  the 
persons  who  may  be  required  under  the  above  rule  to  answer 
interrogatories,  vague  language  has  been  employed  which  portends 
future  litigation.  One  difficulty,  however,  has  been  anticipated  and 
partially  cleared  up  by  the  judges;  for  R.   5   of  the  same  Order 


>  Post,  §  527a. 

2  Mercier  v.  Cotton,  L.  R.,  1  Q.  B.  D.  442,  per  Ct.  of  App. ;  46  L.  J.,  Q.   B. 
184,  S.  C. 

•^  See  Acheson  v.  Henry,  I.  R.,  5  C.  L.   496;  Gourley  v.  Plimsoll,  42  L.  J., 

C.  P.  244;  8  Law  Rep.,  C.  P.  362,  S.  C. 

*  Disney  v.    Longbourne,  45  L.  J.,  Ch.  532,  per  Jessel,  M.  R.;  L.  R.,  2  Ch. 

D.  704,  S.  C.  See  Martin  v.  Hemming,  10  Ex.  R.  378;  Forshaw  v.  Lewis,  id. 
716;  Croomes  v.  IMorrison,  5  E.  &  B.  984  ;  Morris  v.  Parr,  6  B.  &  S.  203. 
See,  however,  Harbord  v.  Monk,  L.  R.,  9  Ch.  D.  616,  per  Jessel,  M.  R.,  as  to 
the  practice  in  the  Chancery  Division. 

(3341) 


474  INTEKROGATORIES  IN  CASE  OF  CORPORATIONS.        [PAKT  11. 

provides,  that,  "  if  any  party  to  a  cause  or  matter  be  a  body  corpo- 
rate or  a  joint  stock  company,  whether  incorporated  or  not,  or  any 
other  body  of  persons,  empowered  by  law  to  sue  or  be  sued,  whether 
in  its  own  name  or  in  the  name  of  any  officer  or  other  person,  any 
opposite  party  may  apply  for  an  order  allowing  him  to  deliver 
interrogatories  to  any  member  or  officer^  of  such  corporation,  com- 
pany, or  body,  and  an  order  may  be  made  accordingly." 

§  524a.  In  acting  under  this  last  rule  the  judge  should  be  satis- 
tied  that  the  member  or  officer  sought  to  be  inteiTogated  is  likely 
to  be  able  to  give  discovery ;  but  he  is  not  bound  at  that  stage  of 
the  proceedings  to  consider  the  propriety  of  the  proposed  interro- 
gations." When  interrogatories  have  been  delivered  to  a  member 
under  this  rule  he  cannot  refuse  to  file  his  affidavit  in  answer  until 
he  has  been  paid  his  taxed  costs.'*  Neither  can  a  town  clerk,  who 
has  been  put  forward  as  a  public  officer  to  answer  interrogatories 
on  behalf  of  a  municipal  corporation,  claim  exemption  from  answer- 
ing on  the  ground  of  privilege  as  being  also  the  solicitor  to  the  cor- 
poration.* The  establishment  of  the  above  rule  has  been  productive 
of  much  good,  for  it  has  put  a  stop  to  the  costly  and  vexatious 
practice  which  used  to  prevail  in  equity  suits  of  making  individual 
members  and  officers  of  corporate  bodies  nominal  defendants  for  the 
mere  purpose  of  discovery.^  Now,  if  such  a  course  were  taken,  the 
judge  would  strike  out  the  name  of  the  formal  defendant,  and  grant 
him  his  full  costs.** 

§  524b.  It  must  also  be  borne  in  mind,  that  the  above  rule  only 
enables  parties  to  interrogate  oppos/fe  parties,  and  consequently  one 
defendant  cannot  avail  himself  of  it  for  the  purpose  of  interrogating 
another  co-defendant.' 

'  See  Rep.  of  Costa  Rica  v.  Erlanger,  L.  R.,  1  Ch.  D.  171,  per  Ct.  of  App. 

'^  Berkeley  v.  Standard  Discount  Co.,  L.  R.,  9  Ch.  D.  643,  per  Malins,  V.-C; 

=*  Berkeley  v.  Standard  Discount  Co.,  L.  R.,  13  Ch.  D.  97,  per  Ct.  of  App.; 
49  L.  J.,  Ch.  1,  S.  C;  overruling  S.  C,  L.  R.,  12  Ch.  D.  295,  per  Fry,  J.; 
and  48  L.  J.,  Ch.  797. 

*  Swansea,  May.  of,  r.  Quick,  49  L.  J.,  C.  P.  157;  L.  R.,  5  C.  P.  D.  106, 
S   C.  nom.  Swansea,  May.  of,  t?.  Quirk. 

*  Wilson  V.  Church,  L.  R.,  9  Ch.  D.  552,  per  Jessel,  M.  R. 
«  Id. 

'  Molloy  V.  Kilby,  L.  R.,  15  Ch.  D.  162,  per  Ct.  of  App. 

(3342) 


CHAP,  v.]  COSTS  OF  NEEDLESS  INTERROGATORIES.  475 

§  524c.  It  is  almost  needless  to  add  that  a  guardian  ad  litem  to 
a  lunatic  defendant  is  not  a  "  party  "  within  the  meaning  of  the 
rule,  and  therefore  cannot  be  compelled  to  answer  interrogatories.* 

§  525.  As  the  liberty  granted  by  the  first  clause  in  Rule  1  was 
likely  to  degenerate  into  licence,  and  instead  of  aiding  the  investi- 
gation of  truth,  to  heap  up  what  lawyers  love  to  call  with  selfish 
tautology  "  costs,  charges,  and  expenses,"  a  remedy  for  this  antici- 
pated abuse  has  been  devised  by  Rule  3,  which  is  thus  expressed:  — 
"  In  adjusting  the  costs  of  the  cause  or  matter,  inquiry  shall,  at  the 
instance  of  any  party,  be  made  into  the  propriety  of  exhibiting  such 
interrogatories,  and  if  it  is  the  opinion  of  the  taxing  officer  or  of 
the  court  or  judge,  either  with  or  without  an  application  for  inqiairy, 
that  such  interrogatories  have  been  exhibited  unreasonably,  vexa- 
tiously,  or  at  improper  length,  the  costs  occasioned  by  the  said 
interrogatories  and  the  answers  thereto  shall  be  paid  in  any  event 
by  the  party  in  fault." 

§  526.  Whether  these  provisions  will  prove  effective  or  not  re- 
mains to  be  seen,  but  he  must  be  a  sanguine  reformer  who  can 
await  the  result  of  the  experiment  without  some  apprehension. 
The  question  "quis  custodiet  custodes?"  forces  itself  upon  the 
memory,  and  the  discretion  of  a  taxing  officer, — subject  though  it 
may  be  to  the  costly  control  of  a  judge, — will  scarcely  afford  a  very 
safe  protection  to  the  suitor  against  the  danger  of  interrogatories 
being  exhibited  '•  unreasonably,  vexatiously,  or  at  improper  length." 

§  527.  Three  more  attempts  to  keep  within  due  bounds  the 
powers  entrusted  to  suitors  by  Rule  1  have  been  embodied  in  other 
rules  of  the  same  Order.  First,  it  is  provided  by  Rule  25,  that  "  in 
every  cause  or  matter  the  costs  of  discovery,  by  interrogatories  or 
otherwise,  shall,  unless  otherwise  ordered"^  by  the  court  or  a  judge, 
be  secured  in  the  first  instance  as  provided  by  Rule  26  ";  and  then, 
under  that  Rule,  every  party  seeking  discovery  must,  before  taking 


'  Ingram  v.  Little,  L.  R.,  11  Q.  B.  D.  251.  See,  also,  Ord.  XVIII,  and  post, 
§  1800. 

■^  See  A.  Intre  Smith;  Smith  v.  Went,  50  I..  T.  Rep.,  N.  S.  382;  Burr  v.  Hub- 
bard, 76  L.  T.  77;  W.  N.  1883  p.  198;  and  Henderson  r.  Ripley,  76  L.  T.,  388; 
W.  N.  1884,  p.  85,  as  to  when  the  court  will  relax  the  Rule. 

(3343) 


476    DEPOSIT  BEFORE  DISCOVERY — SCANDALOUS  INTERGTS.      [PAEr  11. 

any  step,  pay  into  court  to  a  separate  account  in  the  action  a  sum 
of  at  least  5Z.,  and  this  sum  will  only  be  allowed  as  part  of  his  costs 
where  the  discovery  appears  to  the  judge,  or  the  court,  or  the  taxing 
officer,  to  have  been  reasonably  asked  for.  The  discretionary  power 
entrusted  to  the  judge  of  dispensing  with  this  preliminary  payment, 
should,  in  the  interests  of  the  poorer  suitors,  be  cautiously  exer- 
cised; and  the  mere  fact  of  the  solicitors  on  both  sides  consenting 
to  waive  the  deposit,  so  far  from  depriving  the  judge  of  his  right  to 
withhold  such  an  order  if  he  thinks  fit,  would,  in  most  cases,  be  an 
additional  reason  why  he  should  determine  to  form  his  own  inde- 
pendent judgment  on  the  matter.^ 

§  527a.  The  next  attempt  made  to  remedy  what  may  justly  be 
called  the  abuse  of  discovery  will  be  found  in  Rule  6,  which  pro- 
vides, that  "any  objection  to  answering  any  one  or  more  of  several 
interrogatories  on  the  ground  that  it  or  they  is  or  are  scandalous  or 
irrelevant,  or  not  bona  fide  for  the  purpose  of  the  cause  or  matter, 
or  that  the  matters  inquired  into  are  not  sufficiently  material  at 
that  stage,  or  on  any  other  ground,  may  be  taken  in  the  affidavit  in 
answer."  Rule  7  lastly  provides,  that  "  any  interrogatories  may  be 
set  aside  on  the  ground  that  they  have  been  exhibited  unreasonably 
or  vexatiously,  or  struck  out  on  the  ground  that  they  are  prolix, 
oppressive,  unnecessary,  or  scandalous;  and  any  application  for 
this  purpose  may  be  made  within  seven  days  after  service  of  the 
interrosratories."  ^ 


§  528.  The  party  who  applies  to  the  court  to  strike  out  interro- 
gatories under  these  last  rules  must — unless  he  can  show  that  the 
whole  of  them  are  either  scandalous  or  irrelevant,  or  not  put  bona 
fide — specify  the  particular  questions  to  which  he  objects,  and  the 
grounds  of  his  objection.^  Next,  before  the  court  will  interfere,  it 
must  be  satisfied  not  only  that  the  objection  is  a  reasonable  one, 
but  that  it  applies  to  the  interrogatory  itself,  and  rests  on  some 


^  Astet'.  Stumore,  53  L.  J.,  Q.   B.  82,  per  Ct.  of  App.;  L.    K.,  13  Q.  B.  D. 
326,  S.  C. 

2  See  Gay  r.  Labouchere,  L.  R.,  4  Q.  B.   D.  206;  48  L.  J.,  Q.  B.  279,  S.   C. 

=*  Allhusen  v.  Labouchere,  L.   R.,  3  Q.  B.  D.  654,  per  Ct.  of  App.;  47  L.  J., 
Q.  B.  819,  S.  C. 

(3344) 


CHAP,  v.]        WHAT   INTERROGATOKIES    CAN    BE    STRUCK    OUT.  477 

ground  of  a  similar  nature  to  those  enumerated  in  the  rule.^  A 
relevant  interrogatory,  therefore,  cannot  be  struck  out  by  a  judge 
on  the  ground  that  the  matter  inquired  after  relates  to  an  indictable 
offence,  but  the  remedy  of  the  party  interrogated  in  such  a  case  is 
to  decline  to  answer,  on  the  ground  that  such  answer  may  tend  to 
criminate  him.^  Neither  can  the  rules  be  relied  on  for  the  purpose 
of  excluding  interrogatories  on  the  ground  that  they  seek  discovery 
of  the  facts  on  which  the  opposite  party  relies,  though  all  questions 
will  be  struck  out  which  are  put  with  the  view  of  dit- covering  the 
evidence  by  which  such  facts  are  intended  to  be  established.'^  When 
the  facts  relied  on  consist  of  conversations,  the  party  interrogated 
may  be  required  to  give  their  general  effect,  but  not  to  set  out  their 
details.* 

§  528a.  When  a  judge  has  exercised  his  discretion  under  these 
rules,  the  Lords  Justices  will  not  readily  entertain  any  appeal, 
unless  it  be  clear  that  the  decision  rests  on  a  wrong  j^rincijjle  in 
which  event  they  are  bound  to  interfere  so  that  the  right  doctrine 
may  in  future  be  understood.'^  It  may  not  at  all  times  be  an  easy 
task  for  a  judge  to  determine  in  what  manner  to  deal  with  interro- 
gatories, when  some  of  them  are  objectionable  and  others  are  free 
from  objection.  This  much,  howevei',  may  perhaps  be  safely  laid 
down,  that,  in  such  a  case,  the  objectionable  questions  should  alone 
be  struck  out,  unless  they  be  so  intermingled  with  the  others  as  to 
render  it  difficult  to  separate  them,  or  unless  they  form  a  large 
majority  of  the  interrogatories  delivered.  In  either  of  these  cases 
the  judge  may,  as  it  seems,  properly  exercise  his  discretion  by 
striking  out  the  whole  batch,  and  leaving  the  party  to  deliver  new 
ones.^     Although  any  party  improperly  interrogated  is  empowered. 


1  Fisher  v.  Owen,  L.  R.,  8  Cli.  D.  645,  per  Ct.  of  App.;  47  L.  J.,  Ch.  681. 
S.  C;  Eade  v.  Jacob,  47  L.  J.,  Ex.  74,  76,  per  Ct.  of  App.;  L.  11.,  3  Ex.  D. 
335,  337,  S.  C;  The  KacTnorshire,  L.  R.,  5  P.  D.  172. 

2  Fisher t;.  Owen,  L.  R.,  8  Ch.  D.  645,  per  Ct.  of  App.;  47  L.  J.,  Ch.  681, 
S.  C. 

'  Eadet'.  Jacob,  47  L.  J.,  Ex.  74,  per  Ct.  of  App.;  L.  R.  3  Ex.  D.  335, 
S.  C.  See  Johns  v.  James,  L.  R.,  13  Ch.  D.  370  ;  and  Att.-Gen.  v.  Gaskill 
L.  R.,  20  Ch.  D.  519 ;  51  L.  J.,  Ch.  870,  S.  C.  *  Id. 

5  Fisher  v.  Owen,  L.  R.,  8  Ch.  D.  645,  652,  653,  per  Ct.  of  App.  See  Thorbum 
V.  Crawford,  per  Ct.  of  App.,  26  July,  1884. 

«  Id.  652,  per  Jessel,  M.  R. 

(3345) 


478      INTERROGATORIES    TO    BE    ANSWERED    BY    AFFIDAVIT.   [PART   II, 

under  Rule  G,  to  apply  to  a  judge  to  strike  out  the  obnoxious  ques- 
tions, be  is  not  bound  to  take  that  course  ;  and  if  be  neglects  to  do 
so,  be  may  still  refuse  to  answer  any  question  wben  a  legal  ground 
for  sucb  refusal  exists.^  Tbe  recent  case  of  Lyell  r.  Kennedy,^ 
decided  in  tbe  House  of  Lords,  will  serve  to  illustrate  tbis  proposi- 
tion. Tbere,  tbe  plaintiff  baving  been  interrogated  respecting  bis 
knowledge,  information,  and  belief  upon  matters  relevant  to  tbe 
defendant's  case,  answered  tbat  be  bad  no  personal  knowledge  of 
any  of  tbe  matters,  and  tbat  tbe  only  information  be  bad  received 
with  regard  to  tbem  bad  been  derived  from  privileged  communica- 
tions made  to  bim  by  bis  solicitors  or  tbeir  agents  for  tbe  purposes 
of  bis  own  case  ;  and  be  tben  submittted  tbat  be  was  not  bound  to 
state  bis  belief  on  tbe  subject,  derived  as  it  was  from  sucb  com  • 
munications,  or  to  make  any  furtber  answer.  Tbe  court  under 
tbese  circumstances  held  tbat  tbe  answer  was  sufficient. 

§  529.  Order  XXXI., — after  furtber  providing  tbat  all  interroga- 
tories "  shall  be  answered  by  affi  lavit,  to  be  filed  within  ten  days 
or  sucb  other  time  as  a* judge  may  allow,"  "  and  that  such  affidavit- 
may  be  in  accordance  with  the  Form  given,*  and  shall,  if  exceeding 
ten  folios,  be  printed,  unless  otherwise  ordered  by  a  judge,^ — goes 
on  to  declare,  in  Rule  10,  that  "no  exceptions  shall  be  taken  to 
any  affidavit  in  answer,  but  tbe  sufficiency  **  or  otherwise  of  any  sucb 
affidavit  objected  to  as  insufficient  shall  be  determined  by  tbe  coiu"t 
or  a  judge  on  motion  or  summons."      Rule  11,  tben  provides,  tbat 

^  Fisher  v.  Owen,  L.  R.,  8  Ch.  D.  646,  654,  per  Cotton,  L.  J.;  clearing  up  a 
doubt  expressed  in  Saunders  v.  Jones,  L.  R.,  7  Cli.  D.  435. 
2  L.  R.,  9  App.  Cas.  81. 
''  R.  8. 

*  R.  9,  and  Form  7,  App.  B.,  which,  like  Form  6,  is  all  but  valueless,  being 
as  follows  : — 

"  In  the  High  Court  of  Justice,  18  [Here put  the  letter  and  ninnher.'] 

Division. 

Between  A.  B.,  plaintiff, 
and 
C.  D.,  E.  F.,  and  G.  H.,  defendants. 
The  answer  of  the  above-named  E.  F.  to  the  interrogatories  for  his  examina- 
tion by  the  above-named  plaintiff. 

In  answer  to  the  .said  interrogatories,  I,   the  above-named  E.  F.,  make  oath 
and  say  as  follows  : — 

'"  See  Webb.  v.  Bornford,  46  L.  J.,  Ch.  288,  per  Hall,  V.-C. 
®  The  Court,  under  Rules  10  &  11.  must  consider  the  suffieieney  in  law,  not 
the  truth  in  fact,  of  the  answer  ;  and  in  the  event  of  insufficiency  alone  will  a 
further  answer  be  required  ;  Lyell  v.  Kennedy,  53  L.  J.,  Ch.  937,  per  Ct.  of 
App.;  S.  C. ,  L.  R.,  27  Ch.  D.  1.  A  few  such  cases  as  this  one  would  go  very 
far  towards  inducing  the  Legislature  to  sweep  away  the  whole  law  relating  to 
Discovery  and  Interrogatories. 

(3346) 


CHAP,  v.]         INSUFFICIENT  ANSWERS  TO  INTERROGATORIES.  479 

"  If  any  person  interrogated  omits  to  ansicer  or  answers  insufficiently, 
the  party  interrogating  may  apply  to  the  court  or  a  judge  for  an 
order  requiring  him  to  answer,  or  to  answer  further,  as  the  case 
may  be.  And  an  order  may  be  made  requiring  him  to  answer,  or 
answer  further,  either  by  affidavit  or  by  viva  voce  examination,  as 
the  judge  may  direct."  A  summons  under  this  rule,  as  under  the 
rule  authorising  applications  to  strike  out  interrogatories,  must 
specify  the  particular  questions  or  parts  of  questions  to  which  a 
further  answer  is  required;'  unless,  indeed,  in  a  case  where  all  the 
prior  answers  are  objected  to  as  amounting  to  an  abuse  of  the  prac- 
tice of  the  court. '^ 


§  530.  Although  the  omission  to  answer  interrogatories,  when 
delivered  icithout  leave  under  the  first  clause  of  Rule  1,  is  not  in 
itself  a  contempt  of  court,  but  only  entitles  the  interrogator  to 
apply  to  the  court  for  an  order  under  the  rule  just  cited,  the  dis- 
obedience of  an  order  so  obtained  is  a  much  more  serious  matter; 
for  the  party  failing  to  comply  therewith  is  not  only  liable  to 
attachment,  but  he  may,  if  a  plaintifP,  have  his  action  dismisse'd, 
and  if  a  defendant,  have  his  defence  struck  out.^ 

§  531.  It  may  be  difficult  to  define  a  priori,  what  amounts  to  an  g  434 
insufficient  answer,  but  it  appears  that  in  general  the  answers  to 
interrogatories  will  be  deemed  insufficient,  first,  if  they  be  not  made 
categorically  to  each  specific  question  ;  *  and  next,  if  the  parties 
interrogated  rely  on  their  personal  ignorance  of  facts,  of  which  they 
might  fairly  be  presumed  to  have  cognisance,  without  showing  that 
they  had  done  their  best  to  obtain  from  their  servants  or  agents  the 

1  Anstey  v.   North  &  South  Woolwich  Siibway  Co.,  L.  E.,  11  Ch.  D.  439; 
48  L.  J.,  Ch.  776,  S.  C. ;  Chesterfield  Colliery  Co.  v.  Black,  24  W.  N.  783. 
'  Furber  v.  King,  50  L.  J.,  Ch.  496. 

*  Rule  21  is  as  follows:  "  If  any  party  fails  to  comply  with  any  order  to 
answer  interrogatories,  or  for  discovery,  or  inspection  of  documents,  he  shall 
be  liable  to  attachment.  He  shall  also,  if  a  plaintiff,  be  liable  to  have  his 
action  dismissed  for  want  of  prosecution,  and,  if  a  defendant,  to  have  his 
defence,  if  any,  struck  out,  and  to  be  placed  in  the  same  position  as  if  he 
had  not  defended,  and  the  party  interrogating  may  apply  to  the  court  or  a 
judge  for  an  order  to  that  effect,  and  an  order  may  be  made  accordingly." 
See  post,  ^  1808. 

*  Chester  v.  Wortley,  18  Com.  B.  239. 

(3347) 


480        WHAT  QUESTIONS  ALLOWABLE  IN  INTERROGATORIES.    [PART  II. 

information  required.'  The  same  result,  too,  will  follow,  if,  in 
addition  to  the  information  asked  for,  the  answers  contain  in 
excess,  either  irrelevant  or  otherwise  objectionable  matter."  The 
party,  however,  who  complains  of  the  insufficiency  must  apply 
promptly  to  the  judge,  for  otherwise  he  will  decline  to  interfere." 
The  application  should  be  ipaade  by  summons  in  chambers,  and  not 
by  motion,  and  the  particular  answers  objected  to  should  be  speci- 
fied/ It  is  also  desirable,  if  not  necessary,  that  at  least  in  every 
case  involving  doubt,  the  application  should  be  supported  by 
affidavit,  for  the  judges  seem  inclined  to  administer  this  branch  of 
their  jurisdiction  with  considerable  caution.^  The  order  for  an  oral 
examination  may  be  drawn  up  in  general  terms,  and  it  is  neither 
necessary  nor  convenient  to  specify  the  particular  points  on  which 
the  party  is  to  be  interrogated.^  When  the  oral  examination  takes 
place,  it  would  seem,  on  principle,  that  the  party  should  be  allowed 
the  assistance  of  counsel.^  When  the  answers  to  interrogatories 
are  formally,  but,  as  far  as  can  be  seen,  not  intentionally,  defective, 
the  proper  course  to  pursue  is  to  apply  at  chambers  to  have  them 
amended  ;  for  the  court  is  reluctant  to  order  further  answers  to  be 
made,  provided  that  the  first  be  substantially  sufficient.^ 

§  532.  In  considering  what  questions  may  under  these  Rules  be    |  482a 
asked  on  interrogatories,  the  courts  should  be   guided,  though  not 
fettered,  by  the  rules  and  principles  which  the  old  Courts  of  Equity 
used  to  act  upon  with  respect  to  discovery."  Judges  must  remember, 
that  the  right  of  discovery,  as  it  formerly  existed  in   the   Court  of 


1  Bolckow  V.  Fisher,  52  L.  J.,  Q.  B.  12,  per  Ct.  of  App.;  L.  R.,  10  Q.  B.  D. 
IGl,  S.  C.  See  Rasbotham  ?;.  Shropshire  Union  Ry.  Co.,  L.  R.,  24  Ch.  D.  110; 
53  L.  J.,  Ch.  327,  S.  C. 

2  Peyton  v.  Harting,  43  L.  J.,  C.  P.   10;  9  Law  Rep.,  C.  P.  9,  S.  C. 
^  Chester  v.  Wortley,  18  Com.  B.  239. 

*  Chesterfield  v.-  Baythorpe  Colliery  Co.  v.  Black,  24  W.  R.,  783,  per 
V.-C.  Hall. 

*  Swift  V.  Nun,  26  L.  J.,   Ex.  365. 

«  Peyton  v.    Harting,   43  L.  J.,  C.  P.   10  ;    9  Law  Rep.,  C.   P.  9,  S.  C. 
'  Id. 

*  Bender  v.  Zimmerman,  29  L.  J.,   Ex.  244. 

»  Fjev.  Butterfield,  34  L.  J.,  Q.  B.  17;  5  B.  &  S.  829,  S.  C;  Whateley  v. 
Crowter,  5  E.  &  B.  712,  per  Ld.  Campbell;  Dalrymple  i'.  Leslie,  L.  R.,  8  Q. 
B.  D.  5;  51  L.  J.,  Q.  B.  61,  S.  C. 

(3348) 


CHAP,  v.]     WHAT  QUESTIONS  ALLOWABLE  IN  INTERROGATORIES.        481 

Chancery,  still  exists  in  the  High  Coui't,  except  so  far  as  it  is 
modified  by  the  Judicature  Acts  and  the  General  Orders;  and  con- 
sequently, that  a  party  has  still  a  right  to  exhibit  interrogatories 
not  only  for  the  purpose  of  obtaining  from  his  opponent  information 
respecting  material  facts  which  are  not  within  his  own  knowledge 
and  are  within  the  knowledge  of  the  party  interrogated,  but  also  for 
the  purpose  of  obtaining  from  the  opponent  admissions  which  will 
save  the  necessity  of  proving  the  facts  admitted.'  A  defendant, 
therefore,  has  been  held  bound  to  give  his  version  of  a  material 
conversation  between  himself  and  the  plaintiff's  solicitor,  as  also  to 
answer  interrogatories  respecting  the  existence  of  a  right  of  way 
claimed  by  the  plaintiff  and  disputed  by  himself."  So,  also,  in  an 
action  for  the  recovery  of  land  upon  a  legal  title,  which  is  analogous 
to  the  old  action  of  ejectment,  a  plaintiff  has  a  right  to  interrogate 
the  defendant,  or  to  obtain  admissions  from  him  as  to  the  title  upon 
which  he  the  plaintiff  himself  relies.^  But,  on  the  other  hand,  a 
tenant  cannot  be  compelled  by  his  landlord  to  answer  interroga- 
tories, where  the  answer  would  tend  to  show  that  he  had  incurred 
a  forfeiture  of  his  lease  by  reason  of  his  having  underlet  the  pre- 
mises.* Nor  will  a  defendant,  in  an  action  of  libel,  be  required  to 
give  the  substance  of  letters  written  by  him,  when  he  has  no  copies 
and  avers  that  he  cannot  recollect  the  exact  language  he  used.^ 
Indeed,  as  a  general  rule,  a  party  cannot  inquire  into  facts  which 
relate  exclusively  to  the  case  of  his  adversary,  although  he  will 
occasionally  be  allowed  to  do  so,  when  he  makes  a  claim  as  the 
representative  of  a  deceased  person,  and  the  defence  setup  consists 
of  transactions  said  to  have  taken  place  with  that  person,  and  to  be 
exclusively  within  the  knowledge  of  the  defendant.^     A  party  may 

1  Att.-Gen.  v.  Gaskill,  L.  R.,  20  Ch.  D.  519,  per  Ct.  of  App.;  51  L.  J.,  Ch. 
870,  S.  C.  2  1(1 

3  Lyell  V.  Kennedy,  L.  E.,  8  App.  Cas.  217;  and  52  L.  J.,  Ch.  385,  per 
Dom.  Proc,  overruling  S.  C,  51  L.  J.,  Ch.  409,  per  Ct.  of  App.;  L.  R.,  20 
Ch.  D.  484,  S.  C. 

*  Pye  V.  Butterfield,  34  L.  J.,  Q.  B.  17;  5  B.  &  S.  829,  S.  C;  Bp,  of  Cork 
V.  Porter,  I.  R.  11  C.  L.  94.  See,  also,  Eade  v.  Jacob,  47  L.  J.,  Ex.  74,  per 
Ct.  of  App.;  L.  R.,  3  Ex.  D.  335,  S.  C. 

*  Dalrymple  v.  Leslie,  L.  R.,  8  Q.  B.  D.  5;  51  L.  J.,  Q.  B.  61,  S.  C. 

«  Hills  V.  Wates,  9  Law  Rep.,  C.  P.  688;  43  L.  J.,  C.  P.  380,  S.  C. ;  Hawkins 
I'.  Carr,  and  Parsons  v.  Carr,  35  L.  J.,  Q.  B.  81 ;  1  Law  Rep.,  Q.  B.  89;  and 
6  B.  &  S.  995,  S.  C;  Eade  v.  Jacob,  47  L.  J.,  Ex.  74,  per  Ct.  of  App.;  L.  R., 
3  Ex.  D.  337,  S.  C. 

(3349) 


482        WHAT  QUESTIONS  ALLOWABLE  IN  INTERROGATORIES.     [PART  II. 

also  ask  any  questions,  the  answers  to  which  will  advance  his  own 
case,  even  though  they  may  also  disclose  his  opj:)onent's  case.'  For 
instance,  in  an  action  on  a  policy  of  insurance  on  a  cargo,  claiming 
for  a  total  loss,  if  the  statement  of  defence  only  denies  the  policy, 
the  interest,  and  the  loading,  the  plaintiff  cannot  be  interrogated 
as  to  the  several  matters  which  these  traverses  will  require  him  to 
prove;  but  if  there  be  also  a  denial  of  the  loss,  interrogatories  may 
be  tendered  with  respect  to  the  amount  of  damage;  and  if  the 
defendant  were  further  to  allege  that  the  sailing  of  the  vessel  had 
been  unreasonably  delayed,  the  plaintiff  might  be  questioned  with 
respect  to  that  fact." 


§  533.  On  the  same  ground,  if  an  action  for  negligence  be  ?  4S2a 
brought  against  a  surveyor  or  solicitor,  the  defendant  may  be  asked 
what  steps  he  has  taken  to  perform  his  duty;^  and  if  a  valuer  has 
been  employed  to  put  a  price  on  the  goodwill  of  a  business,  he  may, 
for  the  purpose  of  establishing  want  of  skill,  be  questioned  as  to 
the  basis  of  his  valuation.*  So  in  an  action  for  seduction,  a  defen- 
dant may  be  interrogated  with  the  view  of  obtaining  from  him  an 
admission  of  his  immoral  conduct,  though  no  question  can  be  asked 
him  with  respect  to  his  means  or  property.^  So,  where  the  plaintiff 
had  brought  an  action  for  money  had  and  received,  and  his  right  to 
recover  rested  on  the  assumption  that  the  defendant  had,  in  selling 
certain  property  to  him,  falsely  professed  to  act  as  broker  for  a 
third  party,  the  Court  allowed  interrogatories  to  be  delivered  to  the 
defendant,  requiring  him  to  answer  whether  he  had  acted  in  the 
transaction  as  principal  or  agent,  and,  if  as  agent,  to  name  his 
principal."^  So,  where,  to  an  action  for  wrongful  dismissal  brought 
by  the  manager  of  a  business  against  his  employer,  the  statement 
of  defence  alleged  in  general  terms  acts  of  misconduct  on  the  part  of 


1  Bayley  r.  Griffiths,  31    L.  J.,  Ex.  477;  1    H.  &  C.  429,  S.  C;  Goodman   v. 
Holroyd,  15  Com.  B.,  N.  S.  839;  Stewart  v.  Smith,  2  Law  Rep.,  C.  P.  293. 

2  Zarifi  V.  Thornton,  2(5  L.  J.,  Ex.  214. 
nVhateley  r.  Crowter,  5  E.  &  B.  709. 

*  Turner  v.  Goulden,  9  Law  Rep.,  C.  P.  57;  43  L.  J.,  C.  P.  60,  S.  C. 
5  Hodsoll  V.  Taylor,  43  L.  J.,  Q.  B.  14;  9  Law  Rep.,  Q.  B.  79,  S.  C. 
«  Thol   V.  Leash,  10   Ex.  R.  704.     See,  also.  Blight  v.  Goodliffe,  18  Com.  B., 
N.  S.  757. 

(3350) 


CHAP,  v.]  WHAT  QUESTIONS  NOT  ALLOWABLE  IN  INTERROGATOllIES.    483 

the  plaintiff  justifying  his  dismissal,  the  court  held  that  the  plaintiff 
was  at  liberty  to  exhibit  interrogatories,  which  in  substance  asked 
the  defendant,  not  indeed  to  state  the  evidence  he  was  about  to 
adduce,  but  to  specify  the  acts  of  misconduct  on  which  he  relied.' 
This  last  case  illustrates  the  principle,  that,  whenever  a  piiramons 
might  be  taken  out  for  better  particulars,  the  same  information  may 
be  obtained  by  the  aid  of  an  interrogator}."  It  means  no  more  than 
this;  nor  will  the  court  allow  the  use  of  interi'ogatories  as  an  in- 
direct mode  of  seeing  the  adversary's  brief,  and  of  ascertaining 
the  details  of  the  evidence  on  which  he  is  about  to  rely.^ 

§  534.  When  a  party,  on  being  interrogated  as  to  whether  he  ?  482ij 
had  in  his  possession  any  deeds  relating  to  the  lands  in  dispute, 
answered  on  oath  that  he  had,  but  that  such  deeds  were  exclusively 
the  evidences  of  his  own  title  to  the  property,  and  did  not  show 
any  title  in  his  opponent,  the  court  held  that  he  could  not  be  com- 
pelled to  state  the  contents  of  the  documents,  or  to  describe  them, 
but  that  his  oath  as  to  their  efPect  must  be  deemed  conclusive.*  If 
prima  facie  evidence  of  the  loss  of  a  deed  be  made  out  by  aifidavit, 
the  party  supposed  to  have  executed  the  instrument  may  be  in- 
interrogated  de  bene  esse  as  to  its  contents.^  Although  interroga- 
tories as  to  the  means  by  which  a  defendant  proposes  to  establish 
his  title  to  an  hereditament  are  not  admissible,  those  seeking  only 
to  ascertain  the  character  of  his  title,  and  the  quality  of  his  pos- 
session, will,  it  is  said,  be  allowed.*^  Again,  a  plaintiff  seeking  to 
recover  land  may  interrogate  the  defendant  as  to  whether  he  is  not 
really  defending  the  action  on  behalf  of  a  third  person;  for  an 
affirmative  answer  to  such  a  question  would  go  far  towards  making 
the  declarations  of  such  third  person  admissible  in  evidence.^ 

§  535.     It  may  be  laid  down  as  a  general  rule,  that  no  party  will    §  482c 


'  Saunders  v.  Jones,  L.  R.,  7  Ch.  D.  435,  per  Ct.  of  App. ;  47  L.  J.,  Ch.  440, 
S.  C;  Lyon  v.  Tweddell,  L.  R.,  13  Ch.  D.  375. 

'^  Benbow  v.  Low,  50  L.  J.,  Ch.  35,  per  Ct.  of  App.  ^  Id. 

*  Adams  v.  Lloyd,  3  H.  &  N.  351. 

°  Wolverhampton  New  Waterw.  Co.  r.  Hawksford,  5  Com.  B.,  N.  S.  703. 
«  Towne  v.  Cocks,  43  L.  J.,  Ex.  41;  9  Law  Rep.,  Ex.  45,  S.  C. 
'  Sketchley  v.  Conolly,  2  New  R.  23,  per  Q.  B. 
10   LAW  OF  EVID. — V.  II.  (3351) 


484  WHAT  QUESTIONS  NOT  ALLOWABLE  IN  INTERROGATORIES.  [PART  II, 

be  suffered  to  expose  his  adversary  to  fishing  interrogatories,  or  to 
require  him  to  declare  on  oath  how  he  intends  to  shape  his  case.' 
For  example,  in  an  action  of  trover  by  the  trustee  of  a  bankrupt, 
the  plaintiff  could  not  be  compelled  to  answer  interrogatories  for 
the  purpose  of  discovering  what  case  he  intends  to  set  up  at  the 
trial."  The  defendant,  too,  in  an  action  of  slander  will  not, — 
except  under  very  special  circumstances,  precluding  redress  by 
other  means,'  — be  forced  to  admit,  in  answer  to  interrogatories,  the 
precise  words  he  uttered,  and  when,  where,  and  to  whom  he  spoke 
them.*  Neither  can  the  defendant,  in  an  action  for  negligence, 
interrogate  the  plaintiff  as  to  how  the  accident  happened,  or  what 
was  the  extent  of  the  injury,  or  what  was  the  amount  of  the 
medical  charges.^  Still  less  will  a  judge,  except  under  very  special 
circumstances,''  permit  a  defendant,  who  admits  a  breach  of  con- 
tract, to  interrogate  the  plaintiff  respecting  the  damage  he  has 
sustained,  with  the  view  of  paying  money  into  court.'  Nor,  as  it 
seems,  will  interrogatories  be  allowed,  when  the  interrogator  has 
ample  means  of  obtaining  from  his  own  agents  the  information 
which  he  professes  to  seek  from  his  opponent,^  or  when  the  object 


'  Edwards  v.  Wakefield,  6  E.  &  B.  462;  Moor  v.  Eoberts,  26  L.  J.,  C.  P., 
216;  2  Com.  B.,  N.  S.  671,  S.  C. 

■''  Edwards  v.  Wakefield,  6  E.  &  B.  462.  See,  also,  Finney  v.  ForAvard,  35 
L.  J.,  Ex.  42;  1  Law  Eep.,  Ex.  6;  and  4  H.  &  C.  33,  S.  C.  But  see  Derby 
Bk.  V.  Luujsden,  5  Law  Rep.,  C.  V.  107;  39  L.  J.,  C.  P.  72,  S.  C. 

=*  Atkinson  v.  Fosbroke,  35  L.  J..  Q.  B.  182;  1  Law  Rep.,  Q.  B.  628;  7  B. 
&S.  618,  S.  C;  Greenfield  v.  Reay,  45  L.  J.,  Q.  B.  81;  10  Law  Rep.,  Q.  B. 
217,  S.  C^     See  O'Connell  v.  Barry,  I.  R.  2  C.  L.  648.     Sed  qu. 

SStern'r.  Sevastopulo,  2  New  R.  329;  32  L.  J.,  C.  P.  268;  14  Com.  B., 
N.  S.  737,  S.  C;  Tupling  i;.  Ward,  30  L.  J.,  Ex.  222;  6  H.  &  N.  749,  S.  C; 
Edmunds  v.  Greenwood,  4  Law  Rep..  C.  P.  70;  38  L.  J.,  C.  P.  115,  S.  C.  See 
Hill  V.  Campbell,  44  L.  J.,  C.  P.  97;  10  Law  Rep.,  C.  P.  222,  S.  C;  Fitz- 
gibbon  V.  Greer,  I.  R.,  9  C.  L.  294.  But  see,  also,  M'Loughlin  v.  Dwyer,  I.  R., 
9  C.  L.  170. 

^  Peppiatt  V.  Smith,  3  H.  &  C.  129;  33  L.  J.,  Ex.  239,  S.  C.  But  see 
Wright  V.  Goodlake,  34  L.  J.,  Ex.  82;  3  H.  &  C.  540,  S.  C. 

«  See  Home  v.  Hough,  43  L.  J.,  C.  P.  70;  9  Law  Rep.,  C.  P.  135,  S.  C. 

'  Jourdain  v.  Palmer,  35  L.  J.,  Ex.  69;  4  H.  &  C.  171;  and  1  Law  Eep., 
Ex.  102,  S.  C,  commenting  on  Wright  v.  Goodlake,  34  L.  J.,  Ex.  82;  3  H.  & 
C.  540,  S.  C.  See  Dobson  r.  Richardson,  37  L.  J.,  Q.  B.  261;  3  Law  Rep., 
Q.  B.  778;  and  9  B.  &  S.  516,  S.  C. 

«  Bird  V.  Malzy,  1  Com.  B.,  N.  S".  308.  But  see  Rew  v.  Hiitchins,  10  Com. 
B.,  N.  S.  837,  per  Erie,  C.  J. 

(3352) 


CHAP.  V,  ]      AFFIDAVIT  IN  SUPPORT  OF  PRELIMINARY  DISCOVERY.     485 

is  to  contradict  a  written  -instrument,'  or  to  gain  some  tricky  ad- 
vantage not  dependent  on  real  information,  or  to  heap  up  needless 
costs."  Moreover,  it  has  been  established  as  a  general  rule,  that 
the  party  interrogated  is  not  bound  to  disclose  any  information, 
which  he  may  have  obtained  for  the  purposes  of  the  litigation  in 
which  he  is  engaged.^ 

§  536.  It  may  further  be  laid  down  with  respect  to  interrogatories,  g  4S2t) 
first,  that  where  a  party  interrogated  under  Rule  1  of  Order  XXXI. 
admits  his  possession  of  documents,  he  cannot  be  attached  for 
refusing  to  set  forth  their  contents,  but  his  opponent  must  apply  for 
an  order  to  inspect  them,  under  Rule  15  of  the  same  Order;* 
secondly,  that  interrogatories  as  to  documents  are  not  limited  to 
such  as  are  in  the  possession  or  power  of  the  party  interrogated, 
but  extend  to  all  documents,  "relating  to  the  matter  in  question," 
which  he  has  ever  had  in  his  possession;^  thirdly,  that  a  plaintiff 
may  be  ordered  to  answer  interrogatories,  though  he  be  a  foreigner 
resident  abroad;''  fourthly,  that  where  an  application  for  leave 
to  deliver  interrogatories  is  necessary,'  such  application, — pro- 
vided it  be  made  bona  fide,^  and  be  supported  by  an  affidavit 
disclosing  special  circumstances," — cannot  be  resisted  on  an  affi- 
davit that  the  questions,  if  answered,  may  tend  to  criminate  the 
party  interrogated,'"  or  may  expose  him  to  a  forfeiture  of  his  estate;" 

1  Moor  V.  Roberts,  26  L.  J.,  C.  P.  246;  2  Com.  B.,  N.  S.  671,  S.  C. 

2  Bechervaise  v.  Gt.  West.  Ry.  Co.,  6  Law  Rep.,  C.  P.  36;  40  L.  J.,  C.  P. 
8,  S.  C. 

3  Phillips  V.  Routh,  7  Law  Rep.,  C.  P.  287;  41  L.  J.,  C.  P.  111. 

*  See  Scott  v.  Zygomala,  4  E.  &  B.  483;  Herschfield  v.  Clarke,  11  Ex.  R. 
712;  and  post,  ?  1787.  ^  Lethbridge  v.  Cronk,  44  L.  J.,  C.  P.  381. 

«  Pohl  V.  Young,  25  L.  J.,  Q.  B.  23.  ^  See  ante,  §  522. 

»  Baker  v.  Lane,  34  L.  J.,  Ex.  57;  3  H.  &  C.  544,  S.  C,  as  explained  away 
in  Bickford  v.  D'Arcy,  35  L.  J.,  Ex.  202;  4  H.  &  C.  540,  S.  C. 

9  Villeboisnet  v.   Tobin,  38  L.   J.,   C.   P.  146;  4  Law  Rep.,  C,  P.  184,  S.  C;    , 
Inman  v.  Jenkins,  39  L.  J.,  C.  P.  258;  5  Law  Rep.,  C.  P.  738,  S.  C. 

1"  Osborn  v.  London  Dock  Co.,  10  Ex.  R.  698,  noticed  post,  ?  1466;  M'Fadzen 
V.  May.  &  Corp.  of  Liverpool,  3  Law  Rep.,  Ex.  279;  37  L.  J.,  Ex.  19.3,  S.  C; 
Bartlett  v.  Lewis,  31  L.  J.,  C.  P.  230;  12  Com.  B.,  N.  S.  249,  S.  C;  Goodman 
V.  Holroyd,  15  Com.  B.,  N..  S.  839;  Simpson  v.  Carter,  30  L.  J.,  Ex.  224,  in 
n.  7.     But  see  cases  cited  ante,  p.  464,  n.  *,  as  to  actions  for  defamation. 

"  Chester  v.  Wortley,  17  Com  B.  410;  Bickford  r.  D'Arcy,  35  L.  J.,  Ex.  202; 
1  Law  Rep.,  Ex.  354;  and  4  H.  &  C.  534,  S.  C.  See  Pye  v.  Butterfield,  34  L. 
J.,  Q.  B.  17,  cited  ante,  §  532. 

(3353) 


486  INTERROGATORIES  IN  COUNTY  COURTS.  [PART  II. 

fifthly,  that  when  a  party  submits  to  answer  interrogatories  he  must 
answer  fully; '  sixthly,  that  the  rule  under  discussion  extends 
equally  to  real  and  nominal  parties;"  and  lastly,  that  it  does  not 
apply  to  criminal  proceedings,  or  to  actions  for  penalties.^ 

§  537.  As  it  is  still  necessary  in  certain  events  *  to  obtain  the 
leave  of  the  court  or  a  judge  before  delivering  interrogatories,  it  may 
be  mentioned,  as  a  guide  for  the  exercise  of  judicial  discretion,  that, 
under  the  old  law,^  the  party  proposing  to  interrogate,  or  his 
solicitor  or  agent,  was  obliged  to  file  an  affidavit,  stating  his  belief 
that  the  party,  whether  plaintiff  or  defendant,  would  derive  material 
benefit  in  the  cause  from  the  discovery  sought,  that  there  was  a  good 
cause  of  action  or  defence  on  the  merits,  and,  if  the  applicant  Avas  a 
defendant,  that  the  discovery  was  not  sought  for  the  purpose  of 
delay.^ 

§  538.  As  answers  to  interrogatories  under  the  Enles  of  1883, — 
like  those  which  preceded  them, — were  intended  as  substitiites  for 
the  old  proceedings  in  Chancery  to  compel  discovery,  they  are 
equally  admissible  in  evidence  with  these  proceedings.  The  party, 
at  whose  instance  they  are  taken,  is  empowered  to  use  them,  either 
as  primary  evidence  of  admissions  made  by  his  opponent,  or  as 
furnishing  matter  for  cross-examination,  and,  if  necessary,  for  con- 
tradiction, should  his  opponent  come  forward  as  a  witness  on  his 
own  behalf,  and  make  statements  inconsistent  with  what  he  may 
have  previously  sworn. 

§  539.  In  the  County  Courts  the  rules  relating  to  interrogatories 
are  as  follows: — Order  XIII.  of  the  Rules  of  1875  provides,  by  K.  6, 


'  Elmer  v.  Creasy,  9  Law  Rep.,  Ch.  69;  Gt.  West.  Coll.  Co.  r.  Tucker,  9  Law 
Rep.,  Ch.  376,  per  Ct.  of  App. 

2  M'Kewan  v.  Rolt,  4  H.  &  N.  738;  Mason  r.  Wythe,  3  Fost.  &  Fin.  153,  per 
Keating,  J. 

»  Hummings  r.  Williams.  52  L.  J.,  Q.  B.  273. 

*  See  ante,  ?  .'i22. 

M7  &  18  v.,  0.  125,  I  52.     Now  repealed  by  46  &  47  V.,  c.  49. 

«  See  May  r.  Hawkins,  11  Ex.  R.  210;  O.xlade  v.  N.  East.  Ry.  Co.,  12  Com. 
B.,  N.  S.  3.50;  Kingsford  v.  Gt.  West.  Ry.  Co.,  16  Com.  B.,  N.  S.  761;  33  L.  J., 
C.  P.  307,  S.  C. 

(3354) 


CHAP,  v.]  INTERROGATORIES  IN  COUNTY  COURTS.  487 

that,  "where  a  parly  desires  to  interrogate  any  party  he  shall  apply 
to  the  registrar  for  leave  to  deliver  interrogatories,  and  upon  making 
such  application  he  shall  file  an  affidavit,'  made  by  himself  only,  or 
by  himself  and  his  solicitor  or  agent,  if  any,  or  by  leave  of  the 
registrar  by  his  solicitor  or  agent  only,  stating  that  the  deponent 
believes  that  the  party  proposing  to  interrogate  will  derive  material 
benefit  in  the  action  from  the  discovery  which  he  seeks,  and  that 
there  is  good  canse  of  action  or  defence  upon  the  merits.  And 
upon  such  application  the  registrar  shall  make  an  order,  according 
to  the  form^  in  the  schedule,  that  the  applicant  may,  within  a  time 
to  be  Qamed  in  such  order,  deliver  to  the  party  to  be  interrogated 
interrogatories  in  writing  upon  any  matter  as  to  which  the  applicant 
seeks  discovery,  and  shall  in  such  order  require  the  party  interro- 
gated to  answer  the  questions  in  writing  by  affidavit,  and  file  such 
answers  within  such  time  to  be  appointed  by  the  registrar,  as  shall 
enable  the  party  making  the  application  to  use  the  answers  so  re- 
tm'ned  as  evidence  at  the  trial." 


§  540.   Rule  7   provides,  that  "where   a  party  served  with  the 

^  Form  57  is  as  follows  : — 

"We,  A.  B  ,  of  the  above-named  plaintiff  [or  tkiendant], 

and  L.  M.  of  ,  solioitoi-  in  this  cause  for  the  said  plaintiff  [or 

defendant],  make  oath  and  say,  first, — 

And  I  the  said  A,  B.  for  myself  say, — 

1.  That  I  believe  that  I  shall  derive  material  benefit  in  this  cause  from  the 
discovery  which  I  seek  by  the  interrogatories  which  I  require  to  be  delivered 
herein. 

2.  That  I  believe  that  I  have  a  good  cause  of  [or  defence  to  this]  action 
on  the  merits. 

And  I  the  said  L.  M.  sa3%  — 

3.  That  the  plaintiff  [or  defendant]  will  derive  material  benefit  by  the  dis- 
covery which  he  seeks  by  interrogatories. 

4.  That  I  believe  that  the  plaintiff  [or  defendant]  has  a  good  cause  of  [or 
defence  to  this]  action  on  the  merits." 

^  Form  285  of  the  Cy.  Ct.  Rules,  1876,  is  as  follows  ; — 
"Upon  reading  the  affidavit  of  I  do  order  that  the 

be  at  liberty  to  deliver  to  the  or  his  solicitor,  on  or  before  the 

day  of  18        interrogatories  in  Avriting  upon  the  matters 

as  to  which  discovery  is  sought  in  this  action,  and  that  the  do, 

on  or  before  the  day  of  18        ,  answer  the  questions  in 

vrriting  by  affidavit,  and  return  such  answers  to  me  for  filing. 
Dated  this  day  of 

Registrar  or  Judge." 
(3355) 


488  INTERROGATORIES  IN  COUNTY  COURTS.  [PART  II. 

order  shall  object  to  answer  the  interrogatories,  he  shall  file  an 
affidavit  stating  his  grounds  for  objecting,  and  that  he  will  be  pre- 
pared to  show  cause  to  the  court  at  the  return- day  against  his  being 
required  to  answer  them,  but  where  it  is  only  some  of  the  interro- 
gatories he  objects  to  answer,  he  may  include  in  his  affidavit  both 
his  replies  and  his  objections." 


§  541.  Independent  of  these  rules,  the  County  Court,  by  virtue  of 
§  53  of  the  Common  Law  Procedure  Act,  1854,'  may,  in  case  any 
party  omits  to  answer  sufficiently  any  written  interrogatories,  direct 
him  to  be  orally  examined  either  before  itself  or  the  registrar,  as 
to  such  points  as  it  may  direct ;  and  it  may  also  command  the 
attendance  of  the  party  for  the  purposes  of  the  examination,  and 
the  production  of  documents,  and  may  impose  such  terms  as  to 
costs  or  otherwise  as  shall  seem  just  In  the  event  of  the  registrar 
being  directed  to  take  the  examination,  either  he  or  his  clerk  must 
transcribe  the  answers  given  by  the  party,  he  must  himself  read 
over  the  answers  so  transcribed,  the  party  must  then  sign  his  name 
at  the  foot  thereof,  and  finally  the  document  must  be  filed  by  the 
registrar  as  the  deposition  of  the  party.^ 

§  542.  Rule  8  of  Order  XIII.  farther  provides,  that  "  where  the 
party  required  to  answer  interrogatories  shall  successfully  show 
cause  against  an  order  requiring  him  to  answer  them,  the  judge  may 
direct  the  action  to  proceed,  or  to  be  adjourned  if  he  thinks  fit,  and 
upon  terms  as  to  costs ;  but  if  the  party  objecting  shall  not  show 
sufficient  cause  for  his  objection,  the  judge  may  order  the  interroga- 
tories to  be  then  and  there  answered  viva  voce  in  Court,  or  may 
adjourn  the  action,  and  make  an  order  for  the  answering  of  the 
interrogatories  by  such  time,  and  for  the  payment  of  such  costs  as 
may  have  been  incurred  through  the  delay,  as  he  may  think  fit." 

§  542a.  The  County  Court  Rules,  1883,  substantially  adopting 
an  Order  of  the  Supreme  Court,^  have  provided  by  Rule  11,  that  "any 

'  17  &  18  v.,  c.  125,  I  53,  is  now  repealed,  but  its  repeal  does  not  affect 
its  extension  to  the  Cy.  Cts.  by  ord.  of  Council,  18  Nov.  1867.  See  46  &  47 
v.,  c.  49,  ?  5,  subs.  (e). 

■■^  Ord.  xiv.  of  Cy.  Ct.  Rules,  1875,  r.  7.  ^  See  post,  |  731. 

(3356) 


CHAP.  V.J      ACTIONS  FOR  PERPETUATING  TESTIMONY.         489 

party  may,  at  the  trial  of  an  action  or  issue,  use  in  evidence  any  one  or 
more  of  the  answers  of  the  opposite  party  to  interrogatories  without 
putting  in  the  others;  Provided  always  that  in  such  case  the  judge 
may  look  at  the  whole  of  the  answers,  and  if  he  shall  be  of  opinion 
that  any  other  of  them  are  so  connected  with  those  put  in  that  the 
last-mentioned  answers  ought  not  to  be  used  without  them,  he  may 
direct  them  to  be  put  in." 

§  542b.  It  may  here  be  noticed  that  the  High  Court  has  no 
power  to  order  interrogatories  to  be  delivered  to  a  respondent  in 
a  Parlimentary  Election  Petition.'  Neither  can  an  order  be  made 
against  the  sitting  member  for  the  inspection  and  discovery  of 
documents."  But  independent  of  the  Rules  of  the  Supreme  Court, 
1883,  which  do  not  apply  to  the  case,^  the  practice  in  the  Divorce 
Division  is  to  allow  interrogatories,  and  that  practice  has  recently 
been  followed  in  a  suit  for  nullity  of  marriage.* 

§  543.     Before  courts  of  law  were  empowered  to   issue  commis-    ^  48S 
sions  for  themselves,  it  was  often  necessary  to  institute  proceedings 
in  Chancery  as   auxiliary  to  an   action  at  law  ;  and  in  such  cases, 
recourse  was  had  to  what  was  called  "  an   action  for  perpetuating 
testimony." 

§  544.  The  Legislature,  considering  that  the  benefits  derivable  §  489 
from  this  mode  of  proceeding  might  with  advantage  be  extended, 
passed  two  Acts  for  that  purpose,  one  in  the  year  1842;^  and  the 
other  in  1858.  The  earlier  Act  is  now  repealed,  but  its  provisions 
have  been  substantially  embodied  in  Order  XXXVII.  R.  35,  of  the 
Rules  of  the  Supreme  Court,  1883. '^  That  rule  provides,  that 
"any  person  who  would,  under  the  circumstances  alleged  by 
him  to  exist,  become  entitled,  upon  the  happening  of  any  future 
event,  to   any  honour,  title,  dignity,   or  office,  or  to '  any   estate ' 

'  See  31  &  32  V.,  c.  125,  ??  2  &  26  ;  and  In  re  Wallingford  Petition,  49 
L.  J.,  C.  P.  681  ;  S.  C.  nom.  Wells  r.  Wren,  L.  R.,  5  C.  P.  D.  546. 

''^  Moore  1'.  Kennard,  Salisbury  Elect.  Pet.,  L.  E.,  10  Q.  B.  D.  200  ;  52  L.  J., 
Q.  B.  285,  S.  C. 

''  See  Ord.  LXVIII.  *  Euston  v.  Smith,  L.  R.,  9  P.  D.  57. 

^  5  &  6  V  ,  c.  69;  repealed  by  46  &  47  V.,  c.  49. 

®  Proceedings  under  this  rule  should  be  jealously  watched,  Campbell  r.  E. 
of  Dalhousie,  1  Law  Rep.,  H.  L.  Sc.  462. 

'  See  Re  Stoer,  L.  R.,  9  P.  D.  120,  per  Ct.  of  App. 

C3357) 


490  ACTIONS   FOR   PERPETUATING  TESTIMONY.  [pART  II, 

or  interest  in  any  property  real  or  personal,  the  right  or  claim 
to  which  cannot  by  him  be  brought  to  trial  before  the  happening  of 
such  event,  may  commence  an  action  to  perpetuate  any  testimony 
which  may  be  material  for  establishing  such  right  or  claim."  The 
other  statute  relating  to  this  subject,  which  is  called  "  The 
Legitimacy  Declaration  Act,  1858,"  '  ia  still  in  force,  and  it 
empowers  the  Divorce  Division  of  the  High  Court,  on  the  petition 
of  certain  persons  specially  interested,  to  make  decrees  declaratory  of 
the  legitimacy  or  illegitimacy  of  any  such  petitioner,  or  of  the  validity 
or  invalidity  of  the  marriage  of  his  parents,  or  grandparents,  or  of  his 
own  marriage,  or  of  his  right  to  be  deemed  a  natural- born  subject. 

§  545.  In  entertaining  an  action  to  perpetuate  testimony, —  ^  490 
which  action  must  have  "  been  commenced  for  the  purpose,"  or  no 
witness  will  be  allowed  to  be  examined,^ — the  court  will  compel  the 
defendant  to  appear  and  answer,^  provided  he  be  shown  to  have  an 
interest  in  contesting  the  plaintiff's  claim  in  the  subject  of  the 
proposed  evidence  -,  *  and  the  cause  being  brought  to  issue,  the 
witnesses  will,  it  is  presumed,  be  examined  orally  before  one  of  the 
examiners  of  the  court,  in  accordance  with  the  practice  established 
for  ordinary  actions  under  Ord.  XXXVII.  E.  5,^  The  depositions 
will  then  be  taken  down,  signed,  authenticated,  and  transmitted  to 
the  Central  Office,  in  the  same  manner  as  in  other  cases,^  though 
no  relief  being  prayed,  the  action  must  not  be  set  down  for  trial.'  The 
court  will  not,  in  general,  admit  the  depositions  as  evidence,^  except 
in  support  of  an  action,  nor  then,  unless  it  be  proved  that  the 
witnesses  are  dead,  or  otherwise  incapable  of  attending  to  be  ex- 
amined."*     So,    if   a    witness    in   imminent    danger    of  death  has 


'  21  &  22  v.,  c.  93,  §n.  2;  extended  to  Ireland  by  31  &  32  V.,  c.  20,  Ir. 

■-'Old.  XXXVII.,  R.  37. 

^  See  Ellice  v.  Roupell,  2  New  R.  3,  per  Romilly,  M.  R.;  id.  150,  S.  C; 
and  32  Beav.  299,  308,  &  318,  on  other  points.  *  Mitf.  PI.  63. 

•'' See  Litton  v.  Murphy,  1  L.  R.,  Ir.  301,  which  case  was  decided  on  the 
corresponding  Irish  order,  Ord.  xxxvi.,  r.  6. 

^  Ord.  XXXVII..  RR.  12,  16.  '  Ord.  XXXVII.,  R.  38. 

"*  In  cases  where  the  Crown  has  an  interest,  the  Att.-Gen.  may  be  made 
defendant,  and  no  objections  can  then  be  taken  to  the  depositions  on  the 
ground  that  the  Crown  was  not  a  party  to  the  action,  Ord.  XXXVII.,  R.  36. 

'-•  1  Smith's  Cli.  Pr.  769;  Morri.son  v.  Arnold,  19  Ves.  670.  See  Att-Gen.  v. 
Ray,  2  Hare,  518. 

(3358) 


CHAP,  v.]  VIVA  VOCE  TESTIMONY,  IIOW  PROVED.  491 

been  examined  de  bene  esse  under  the  authority  of  the  ecclesi- 
astical courts,  the  deposition  cannot  be  read,  unless  proof  be 
given  that  the  witness  has  since  died,  or  is  too  ill  to  be  again 
examined  at  the  hearing  of  the  cause.' 


§  546.  It  was  stated  in  the  last  chapter,  that  if  a  witness,  besides  ?  'tSl 
being  examined  on  interrogatories,  should  testify  at  the  trial  of  a 
cause,  either  party,  on  any  subsequent  trial  respecting  the  same 
subject,  provided  the  witness  be  then  incapable  of  attending,  may 
rely,  at  his  option,  either  on  the  deposition,  or  on  the  previous  viva 
voce  testimony;-  and  it  may  be  here  observed,^  that  what  such 
witness  has  orally  testified  may  be  proved,  either  by  any  person, 
who  will  swear  from  his  own  memory,^  or  by  notes  taken  at  the 
time  by  any  person,  who  will  swear  to  their  accuracy,^  or  possibly, 
from  the  necessity  of  the  case,  by  the  judge's  notes.^  This  last 
mode  of  proof,  however,  is  open  to  very  grave,  if  not  insuperable, 
objections,  as  such  notes  form  no  part  of  the  record,  nor  is  it  the 
duty  of  the  judge  to  take  them,  nor  have  they  the  sanction  of  his 
oath  to  their  accuracy  or  completeness.'  How  far  it  may  be  neces- 
sary to  prove  the  j^recise  words  spoken,  does  not  clearly  appear. 
Lord  Kenyon  mentions  a  case,  where  the  evidence  of  a  witness  was 
rejected,  "  as  he  could  not  undertake  to  give  the  words,  but  merely 
to  swear  to  the  effect  of  them;  "  ^  and  the  same  precision  has,  on 
several  occasions,  been  deemed  requisite  in  America;'*  but  on  the 
other  hand,  it  has  been  urged  with  much  force,'"  that  to  insist  upon 


'  Weqnelin  v.  Wequelin,  2  Curt.  263. 

"^  Tod.  V.  E.  of  Winchelsea,  3  C.  &  P.  387,  per  Ld.  Tenterden,  ante,  ?  400. 

^  Gr.  Ev.  ?i  166,  ia  part. 

*  Strutt  ('.  Bovingdon,  5  Esp.  56,  per  Ld.  Ellenborougli;  May.  of  Doncaster 
V.  Day,  3  Taunt.  262:  R.  v.  Jolliffe,  4  T.  R.  290,  per  Ld.  Kenyon. 

^  May.  of  Doncaster  v   Day,  3  Taunt.  262. 

«  Id.  262,  per  Sir.  J.  Mansfield. 

'  Conradi  v.  Conradi,  1  Law  Rep.,  P.  ^  D.  514,  per  Wilde,  J.  O. ;  Miles  v. 
O'Hara,  4  Binn.  108;  Foster  v.  Shaw,  7  Serg.  &  R.  156;  Ex  parte  Learmouth, 
6Madd.  113. 

8  R.  V.  Jolliffe,  4  T.  R.  290. 

3  U.  S.  V.  Wood,  3  Wash.  440;  Foster  'v.  Shaw,  7  Serg.  &  R.  163;  Wilbur 
V.  Selden,  6  Cowen,  165;  Com.  v.  RicTiards,  18  Pick.  434. 

1"  Gr.  Ev.  g  165. 

(3359) 


492  VIVA  VOCE  TESTIMONY,  IIOW  PROVED.  [PART  II. 

strict  accuracy,  goes,  in  effect,  to  exclude  this  sort  of  evidence  alto- 
gether, or  to  admit  it  only  in  cases,  where  the  particularity  and 
minuteness  of  the  witness's  narrative,  and  the  exactness  with  which 
he  undertakes  to  repeat  every  word  of  the  deceased's  testimony, 
ought  to  excite  just  doubts  of  his  own  honesty,  and  of  the  truth  of 
his  evidence.' 


§  547.  Perhaps,  therefore,  on  occasions  when  nothing  of  import-  §492 
ance  turns  on  the  precise  expressions  used,  it  will  be  considered 
sufficient  if  the  witness  can  speak  with  certainty  to  the  substance 
of  what  was  sworn  on  the  former  trial.  Even  on  indictments  for 
perjury  it  is  not  necessary  to  state  the  entire  examination,  but  it 
will  suffice  to  narrate,  with  accuracy,  the  whole  of  that  portion  of 
the  evidence  which  relates  to  the  point  on  which  the  perjury  is 
assigned,  provided  the  witness  can  further  swear  that  he  heard  the 
whole  examination,  and  that  nothing  was  subsequently  said  to 
qualify  the  original  statement.^  Unless  he  can  do  this  his  evidence 
cannot  be  received;  ^  and  as  the  same  rule  must  apply  to  the  proof 
of  the  testimony  of  a  deceased  witness,  it  follows  that  if  the  person 
who  heard  him  give  his  evidence  can  only  state  what  was  said  on 
the  examination  in  chief,  without  also  giving  the  substance  of  his 
answers  in  cross-examination,  or,  at  least,  positively  swearing  that 
nothing  escaped  the  witness,  which  could  vary  or  qualify  the  first 
statement,  his  evidence  will  be  inadmissible." 


§  548.  When  depositions  are  tendered  in  evidence  as  secondary  |  493 
proof  of  oral  testimony,  they  are,  of  course,  open  to  all  the  objec- 
tions which  might  have  been  raised,  had  the  witness  himself  been 
personally  present  at  the  trial.  Leading  and  other  illegal  questions 
are  therefore  constantly  suppressed,  together  with  the  answers  to 
them;  and  this,  too,  whether  the  testimony  has  been  taken  viva 


'  See  Cornell  v.  Green,  10  Rerg.  &  R.   14,   10;  Miles  r.  O'Hara,  4  Binu.  108; 
Catonr.  Lenox,  5  Kand.  31,  36;  Jackson  r.  Bailey,  2  Johns.  17. 
2  R.  V.  Rowley,  1  Moo.  C.  C.  Ill;  R   v.  Dowlin,  Pea.  R.  170. 
2  R.  r.  Jones,  Pea.  R.  38. 
*  Wolf  v.  Wyetb,  11  Serg.  &  R.  149. 

(3360) 


CHAP,    v.]  DEPOSITIONS    OPEN   TO    WHAT    OBJECTIONS.  493 

voce  or  by  written  interrogatories.*  But  a  party  cannot  repudiate 
an  answer  which  has  been  given  to  an  illegal  question  put  on  his  own 
side;'  and  in  all  cases  where  objections  are  taken  to  interrogatories 
on  the  ground  of  their  being  couched  in  a  leading  form,  the  judge 
is  vested  with  a  wide  discretion  as  to  how  much,  if  any,  of  the  de- 
positions returned  he  will  in  consequence  strike  out.''  Where  a 
witnes.-=,  on  being  examined  upon  interrogatories  in  a  foreign  country, 
stated  in  one  of  his  answers  the  contents  of  a  letter  which  was  not 
produced,  that  part*  of  the  deposition  was  suppressed  at  the  trial, 
though  it  was  urged,  that  as  the  witness  was  beyond  the  jurisdiction 
of  the  court,  no  means  existed  for  compelling  the  production  of  the 
letter.^  "We  have  no  power,"  said  Chief  Justice  Tindal,  "to 
compel  the  witness  to  give  any  evidence  at  all;  but  if  he  does  give 
an  answer,  that  answer  must  be  taken  in  relation  to  the  rules  of  our 
law  on  the  subject  of  evidence."  ^ 


§  549.  In  another  case,  a  witness,  with  the  view  of  showing  that  §  494 
the  defendants  had  used  due  diligence  to  obtain  the  answer  of  a 
party  to  a  bill  in  Chancery,  stated  on  interrogatories,  that,  as  their 
agent,  he  had  written  to  the  party;  and  he  then  went  on  to  describe 
the  contents  of  the  letter  and  of  the  reply,  though  he  produced 
neither.  At  a  subsequent  trial  this  deposition  was  tendered  in 
evidence  and  the  court,  while  rejecting  the  answers  which  stated 
what  the  letters  contained,  admitted  that  part  of  the  deposition 
which  proved  that  the  witness  had  written  a  letter  to  the  party  in 
question;  for  had  th6  witness  been  himself  present  in  court  he 
might  have  been  examined  thus  far,  in  order  to  prove  that  the  de- 
fendants through  him  had  used  some  exertion  to  procure  the  party's 
answer.'  Again,  depositions  have  been  admitted,  though  the  wit- 
ness on  his  examination  had  refreshed  his  memory  with  some  papers, 


'  Hutchinson  v.  Bernard,  2  M.  &  Kob.  1.  *  Id. 

''  Small  V.  Nairne;  13  Q.  B.  840. 

*  In  ^\^leeler  v.  Atkins,  5  Esp.  240,  Ld.  Ellenborough  is  reported  to  have 
held,  under  similar  circumstances,  that  either  the  letter  must  be  produced,  or 
the  whole  interrogatory  abandoned.  But  this  case  is  clearly  not  law.  See 
per  Ld.  Denman,  in  Small  v.  Faime,  13  Q.  B.  844. 

*  Steinkeller  v.  Newton,  9  C.  &  P.  319,  per  Tindal,  C.  J.  ^  j^ 
'  Tufton  V.  Whitmore,  12  A.  &  E.  370. 

(3361) 


494  NO   DEGREES    IN   SECONDARY   EVIDENCE.  [pART   11. 

which  he  alleged  were  partly  in  his  handwriting  and  partly  not,  but 
which  he  refused  to  allow  the  commissioners  to  see  upon  the  ground 
that  they  were  private  memoranda;  for,  as  it  was  a  matter  for  the 
discretion  of  the  commissioners,  whether  they  would  permit  the 
witness  to  refer  to  papers  during  his  examination,  the  learned  judge, 
at  the  trial,  presumed  that  they  had  exercised  their  discretion  with 
propriety.' 

§  550.  Another  general  rule,  which  governs  the  production  of  'i  4i»5 
secondary  evidence,  whether  of  documents  or  of  oral  testimony,  is, 
that  the  law  recognises  no  degrees  in  the  various  kinds  of  such  evi- 
dence." If,  therefore,  a  deed  be  lost,  or  be  in  the  hands  of  the 
adversary,  who  after  due  notice  refuses  to  produce  it,  the  party 
seekino-  to  give  evidence  of  its  contents  may  at  once  have  recourse 
to  parol  testimony,  though  it  be  proved  that  he  has  in  his  posses- 
sion a  counterpart,  a  copy,  or  an  abstract  of  the  document.''  So,  if 
it  be  necessary  to  prove  the  former  testimony  of  a  deceased  witness, 
any  person  who  heard  him  examined  may  be  called,  though  a  clerk 
or  a  shorthand- writer  may  have  taken  down  his  evidence  word  for 
word.* 

§  551.  This  rule,  of  course,  does  not  mean  that  the  mere  memory  g  495 
of  a  witness,  who  has  read  a  deed,  is  entitled  to  equal  weight  with 
au  authenticated  copy  of  the  same  instrument ;  for  in  many  cases 
a  jury  would  properly  regard  such  evidence  with  distrust,  and  if  it 
should  appear  that  more  satisfactory  proof  was  intentionally  with- 
held, their  distrust  might  amount  to  absolute  incredulity,  but  the 


'  Steinkeller  r.  Newton,  2  M.  &  Rob.  372,. per  Tindal,  C.  J. 

■'  Doe  V.  Ross,  7  M.  &  W.  102  ;  8  Dowl.  389,  S.  C.-,  Hall  v.  Ball,  3  M.  & 
Gr.  242  ;  3  Scott,  N.  R.  577,  S.  C;  Brown  r.  Woodman,  6  C.  &  P.  206,  per 
Parke,  B. ;  Jeans  v.  Wheedon,  2  M.  &  Rob.  486,  per  Cresswell,  J. 

^  Cases  in  last  note;  also,  Sugden  v.  Ld.  St.  Leonards,  L.  R.,  1  P.  D.  154  ; 
45  L.  J.,  P.  D.  &  A.  1  &  49,  S.  C;  Brown  v.  Brown,  27  L.  J.,  Q.  B.  173; 
8  E.  &  B,876,  S.  C;  In  re  Brown,  27  L.  J.,  Pr.  &  Mat.  20  ;  1  Swab.  &  Trist, 
32,  S.  C;  and  In  re  Gardner,  27  L.  J.,  Pr.  &  Mat.  55  ;  1  Swab.  &  Trist.  109, 
S.  C;  in  whicb  cases  oral  evidence  of  the  contents  of  a  lo.st  will  was  admitted. 
See  Johnson  v.  Lyford,  37  L.  J.,  Pr.,  &  Mat.  65  ;  1  Law  Rep.,  P.  &  D.  546, 
S.  C;  also,  ante,  ^^  436. 

*  Jeans  r.  Wheedon,  2  M.  &  Rob.  486,  per  Cre.sswell,  J.  See  R.  v.  Chris- 
topher, 4  Co.\-,  96  ;  1  Den.  533  ;  2  C.  &  Kir.  994,  S.  C. 

. (3362) 


CHAP,  v.]  COPIES  OF    PUBLIC  DOCrMP]NTS.  495 

rule  simply  applies  to  the  legal  admissibility  of  the  evidence,  and 
is  founded  on  the  inconvenience  that  could  not  fail  to  arise  in  the 
administration  of  justice,  if  the  degrees  of  secondary  evidence  were 
strictly  marshalled  according  to  their  intrinsic  weight,  and  if  parties 
were  consequently  driven,  before  they  could  have  recourse  to  parol 
testimony,  to  account  for  all  secondary  evidence  of  superior  value, 
the  very  existence  of  which  they  might  have  no  means  of  ascer- 
taining. 


§  552.  In  considering  the  practical  efPect  of  this  rule,  care  must  ?  49f; 
be  taken  to  exclude  from  its  ojyeration  those  cases  in  which  the  law 
has  expressly  substituted,  in  the  place  of  primary  proof,  some 
particular  species  of  secondary  evidence.  Thus,  for  instance, 
where  the  contents  of  public  records  and  documents  are  to  be 
proved,  examined  copies,  and,  in  some  cases,  office  or  certified 
copies,  are,  on  grounds  of  general  convenience,  considered  admis- 
"sible;'  and  such  copies,  though  in  strictness  secondary  evidence, 
part.ake  so  much  of  the  character  of  primary  proof,  that  so 
long  as  it  is  possible  to  produce  them,  other  inferior  degrees  of 
secondary  evidence  cannot  be  received.^  Parol  testimony,  therefore, 
can  only  be  admitted,  on  proof,  first,  that  the  public  record  or 
document  has  itself  been  lost  or  destroyed,  for  otherwise  a 
copy  might  be  obtained;  and,  secondly,  that  such  copy,  if  any 
has  been  taken,  is  no  longer  under  the  control  of  the  party. re- 
lying upon  less  satisfactory  evidence.^  In  like  manner,  if  a  witness 
has  been  examined  before  a  magistrate  or  coroner  under  such  cir- 
cumstances, that  these  officers  respectively  have,  in  pursuance  of  their 
duty,  taken  down  his  statement  in  writing,  parol  evidence  of  his 
examination  cannot  be  given  in  the  event  of  his  death,  so  long  as 
the  deposition  itself  can  be  produced;  for  the  law,  having  constituted 
the  deposition  as  the  authentic  medium  of  proof,  will  not  permit 
the  admission  of  any  inferior  species  of  evidence.  If,  indeed,  it 
can  be  shown  that  the  deposition  is  lost  or  destroyed,  or  is  in  the 


'  Ante,  ^  439,  and  post,  ??  1534,  1545,  1598,  et  seq. 
"  Doe  V.  Ross,  7  M.  &  W.  106,  per  Ld.  Abinger. 

'  Thurston  v.  Slatford,  1  Salk,  214,  285;  Macdougal  j'.  Young,  Ry.  &  M. 
392;  1  Ventr.,257. 

(3363) 


496  COPIES  OF  COPIES  INADMISSIBLE.  [PART  II. 

possession  of  the  opposite  party,  who  after  notice  refuses  to  produce 
it,  the  statement  of  a  witness  who  was  present  at  the  examination 
will  then  be  admissible,  as  Avell  as  a  copy  of  the  deposition.' 

§  553.  The  rule  which  includes  in  one  legal  category  every  ?  497 
species  of  secondary  proof,  by  no  means  opens  a  door  to  all  sorts  of 
evidence,  however  loose,  which  a  party  chooses  to  tender."  The 
contents,  therefore,  of  a  written  instrument  which  is  lost  cannot 
be  proved  by  means  of  a  copy,  until  it  be  shown  that  such  copy  is 
accurate;  and  if,  as  frequently  happens,  a  party  to  the  suit  has 
himself  made  a  copy  of  a  letter  which  he  has  sent  to  his  adversary, 
this  copy,  should  the  adversary  refuse  to  produce  the  letter  after 
notice,  cannot  be  read  in  evidence,  unless  the  party  who  made  it  can 
swear  to  its  accuracy,  or  some  other  witness  can  be  called  who  has 
compared  it  with  the  original.^  Neither  can  a  document, — 
excepting  in  a  very  few  cases  by  statutory  authority, — be  proved 
by  the  production  of  the  copy  of  a  copy,*  for  such  evidence  would 
be  rejected  on  the  broad  ground  which  renders  hearsay  evidence 
inadmissible.  The  opponent  would  have  a  right  to  object  that, 
assuming  the  second  copy  to  correspond  exactly  with  the  first,  the 
first  must  be  produced  and  proved  to  have  been  compared  with  the 
original,  or  otherwise  there  would  be  nothing  to  show  that  the 
second  copy  and  the  original  were  identical.  Such  evidence  would 
in  fact  be  but  the  shadow  of  a  shade. 


1  See  2  Russ.  C.  Sc  M.  895;  R.  v.  AVykle,  6  C.  &  P.  380. 

^  Everingham  v.  Roundell,  2  M.  &  Rob.  138,  per  Alderson,  B. 

^  Fisher  v.  Samuda,  1  Camp.  193,  per  Ld.  Ellenborough.  But  see  Waldy 
V.  Gray,  20  Law  Rep.,  Eq.  238,  250,  per  Bacon,  V.-C. 

*  Liebman  v.  Pooley,  1  Stark.  R.  167,  per  Ld.  Ellenborough;  Everingham 
V.  Roundell,  2  M.  &  Rob.  138. 


(3364) 


CHAP.  VI.  J  EVIDENCE  ADDRESSED  TO  THE  SENSES.  497 

CHAPTER  VI. 

EVIDENCE    ADDRESSED    TO    THE    SENSES. 

§  554.  The  first  degree  of  evidence,  and  that  which,  though  I  498 
open  to  error  and  misconception,  is  obviously  most  satisfactory  to 
the  mind,  is  afforded  by  our  own  senses.'  "  Believe  half  what  you 
yourself  see,  and  a  twentieth  part  of  what  you  hear  from  others,"  is 
a  maxim,  which  reflects  severely  upon  human  intelligence  and 
veracity,  but  which,  nevertheless,  is  founded  in  the  main  upon  the 
experience  of  life,  and  marks  the  vast  distinction  that  obtains 
between  a  knowledge  of  facts  derived  from  actual  perception,  and 
the  belief  of  the  existence  of  facts  resting  on  information.  In 
judicial  proceedings,  the  judge  or  jury  can  seldom  act  entirely 
upon  evidence  of  this  description,  though,  when  pregnancy  is 
pleaded,  a  jury  of  matrons  is  empowered  to  decide  the  issue  upon 
examination  of  the  person  of  the  prisoner;"  but  in  a  vast  number 
of  instances,  especially  where  the  fact  in  dis-pute  is  sought  to  be 
proved  by  circumstantial  evidence,  the  verdict  will  be  found  to 
rest  materially  upon  matter  submitted  to  the  ocular  inspection  of 
the  jury.  Thus,  if  a  prisoner  be  indicted  for  stealing  corn,  and 
one  of  the  circumstances  tending  to  establish  his  guilt  be  his 
possession  of  wheat  apparently  resembling  a  quantity  from  which 
a  portion  has  been  recently  taken,  it  is  evident  that  a  comparison 
by  the  jary  of  the  wheat  found  upon  the  prisoner  with  a  sample 
of  that  belonging  to  the  prosecutor,  will  be  more  satisfactory  than 
if  its  identity  be  sworn  to  by  a  witness,  who,  out  of  court,  has 
examined  the  two  lots.     It  is  true  that  the  jury   may  come  to  an 

'  "  Segnius  irritant  animos  demissa  per  aurem, 

Quam  quai  sunt  cculis  subjecta  fidelibus,  et  quee 
Ipse  sibi  tradit  spectator." — HoR.  Ars    Poet.  1,  180. 
So,  also,  in  Shakespeare's  "  Rape  of  Lncrece,"  we  read, — 

"  To  see  sad  sights  moves  more  than  hear  them  told, 
For  then  the  eye  interprets  to  the  ear." 
2  Baynton's  case,  14  How.  St.  Tr.  G30,  631,  G34;  1  Hale,  368,  2  id.  413;  R. 
r.  Wycherley,  8  C.  &  P.  262.  By  this  last  case  it  appears,  that  the  matrons 
may,  in  addition  to  their  personal  inspection,  hear  the  evidence  of  a  snrgeon, 
but  in  that  event  he  must  be  examined  as  a  witness  in  open  court.  See  Lady 
Essex's  case,  2  How.  St.  Tr.  802. 

(336.-)) 


498  I'llODUUTION  OF  ARTICLES  FOR  IDENTIFICATION.       [PART  II. 

erroneous  conclusion  in  such  a  case;  for  either  the  witnesses, 
who  state  that  the  two  parcels  of  wheat  produced  were  respectively 
taken  from  the  prisoner  and  the  prosecutor,  may  intentionally  or 
accidentally  assert  what  is  not  true,  or  the  jurors  themselves  may 
be  mistaken  in  assuming  the  identity  of  the  grain.  Still,  both 
these  sources  of  error  will  equally  exist,  in  the  event  of  a  witness 
being  called  to  state  the  I'esult  of  his  previous  examination  of  the 
tjvo  samples.  And  this  last  course  will  be  farther  open  to  the 
objection,  that  such  a  witness  may  with  little  danger  tell  a  fabri- 
cated story,  since  examination  as  to  mere  matters  of  opinion  is 
almost  necessarily  inconclusive,  and  consequently  the  jury  run  the 
additional  risk  of  being  misled  by  his  fraudulent  testimony. 


§  555.  These  observations  apply  to  all  cases,  in  which  the  guilt  ?  49S 
or  innocence  of  a  prisoner  depends  upon  the  idenilfy  or  comparison 
of  two  articles  found  in  different  places;  as,  for  example-,  the 
wadding  of  a  pistol  with  portions  of  a  torn  letter  found  on  the 
person  of  the  accused,  or  the  fractured  bone  of  a  sheep  Avith 
mutton  found  in  his  house,  or  fragments  of  dress  with  his  rent 
garment,  or  damaged  property  with  the  instrument  by  which  the 
damage  is  supposed  to  have  been  effected.  In  all  these,  and  the 
like  cases,  it  is  highly  expedient,  if  possible,  to  produce  to  the 
court  the  articles  sought  to  be  compared;  and  although  the  law, 
in  demanding  the  production  of  the  best  evidence,  does  not  ex- 
pressly require  that  this  course  should  be  adopted,  but  permits  a 
witness  to  testify  as  to  his  having  made  the  comparison,  without 
first  proving  that  the  article  cannot  be  produced  at  the  trial,  their 
non-production,  when  unexplained,  may  often  generate  a  suspicion 
of  unfairness,  and  will  always  furnish  an  occasion  for  serious  com- 
ment.' In  illustration  of  this  subject,  reference  may  be  made  to 
an  old  case.  A  boy  having  found  a  diamond,  took  it  to  a  jeweller, 
who  refused  to  return  it  to  him.  An  action  of  trover  was  brought, 
and  as  the  jeweller  declined  to  produce  the  diamond  at  the  trial, 
the  judge  directed  the  jury  to  presume  that  it  was  of  the  finest 
water,  and  they  found  accordingly.^     So,  in  the  case  of  "Wood  v. 


^  See  ante,  ?  117. 

"  Armory  i:  Delamirie,  1  Str.  504;  1  Smith,  L.  C.  301,  S.  C. 

(3366) 


CHAP.  VI.]      SKILLED  WITNESSES  AIDING  THE  JURY.  499 

Peel/ where  the  point  at  issue  was  whether  the  plaintiff's  horse 
"  Running  Rein,"  who  had  won  the  Derby  in  1844,  was  foaled  by 
Mab  in  1841,  the  production  of  the  horse,  in  order  to  test  the 
accuracy  and  credit  of  the  witnesses  who  had  sworn  to  its  identity, 
was  considered  so  material,  that  the  plaintiff,  being  unable  to  comply 
with  an  order  of  the  court  to  produce  it,  submitted  very  prudently 
to  a  nonsuit,  rather  than  run  the  almost  inevitable  risk  of  a  verdict 
in  favour  of  the  defendant. 


§  556.  In  many  cases  of  this  nature  it  will  be  advisable,  in  ^  ^^^ 
order  to  guide  the  jury  to  a  right  decision,  that  persons  conversant 
with  the  articles  produced  should  be  examined  as  to  their  opinion 
respecting  the  proof  of  identity.  For  instance,  if  the  question  be 
whether  two  samples  of  wine  be  drawn  from  the  same  bin,  or  two 
pieces  of  cloth  be  the  produce  of  the  same  loom,  or  two  coins  be 
struck  in  the  same  die,  it  is  important  that  a  wine-merchant,  a 
clothier,  or  an  officer  of  the  Mint,^  should  respectively  be  called, 
in  order  to  furnish  the  court  with  suggestions  founded  on  practical 
experience;  because,  in  such  inquiries,  a  jury  composed  of  persons 
perhaps  but  little  acquainted  with  these  matters,  can  scarcely, 
without  some  extrinsic  aid,  be  enabled  to  form  a  correct  judgment 
respecting  them.  Still,  even  here  the  articles  should  be  produced^, 
that  the  jury  may  test  the  accuracy  of  the  opinions  expressed  by 
the  witnesses,  and  may  perceive  that  the  reasons,  upon  which  those- 
opinions  are  founded,  correspond  with  the  actual  state  and  condition-, 
of  the  articles  themselves. 

§  557.  Though  evidence  addressed  to  the  senses,  if  judiciously  §  5or 
employed,  is  obviously  entitled  to  the  greatest  weight,  care  must 
be  taken  not  to  push  it  beyond  its  legitimate  extent.  The  minds 
of  jurymen,  especially  in  the  remote  provinces,  are  grievously  open 
to  prejudices,  and  the  production  of  a  bloody  knife,  a  bludgeon,  or 
a  burnt  piece  of   rag,  may  sometimes,  by  exciting  the  passions,  or 


1  Ex.  Middx.  Sittings  after  T.  T.,  1844,  cor.  Alderson,  B.,  MS. 

'^  24  &  25  v.,  c.  99,  §  29,  provides,  that,  in  order  to  prove  coin  to  be 
counterfeit,  it  shall  not  be  necessaiy  to  call  any  raoneyer  or  other  officer  of 
the  Mint,  but  that  it  shall  be  sufficient  to  prove  that  fact  by  the  evidence  of 
any  other  credible  witness. 

11   LAW  OF  EVID.— V.  II.  (3367) 


500  ABUSE  OF  EVIDENCE  ADDRESSED  TO  THE  SENSES.      [PART  11. 

enlisting  the  sympathies  of  the  jury,  lead  them  to  overlook  the 
necessity  of  proving  in  what  manner  these  articles  are  connected 
•with  the  criminal  or  the  crime;  and  they  consequently  run  no 
slight  risk  of  arriving  at  conclusions,  which,  for  want  of  some  link 
in  the  evidence,  are  by  no  means  warranted  by  the  facts  proved. 
The  abuse  of  this  kind  of  evidence  has  been  a  fi-uitful  theme  for 
the  satirist;  and  many  amusing  illustrations  of  its  efPect  might  be 
cited  from  our  best  authors.  Shakespeare  makes  Jack  Cade's 
nobility  rest  on  this  foundation  ;  for  Jack  Cade  having  asserted, 
that  the  eldest  son  of  Edmund  Mortimer,  Earl  of  March,  "  was  by 
a  beggar  woman  stolen  away,"  "  became  a  bicklayer  when  he  came 
to  age,"  and  was  his  father;  one  of  the  rioters  coniirms  the  story, 
by  saying,  "  Sir,  he  made  a  chimney  in  mv  father's  house,  and  the 
bricks  are  alive  at  this  day  to  testify  it;  therefore  deny  it  not."  ' 
Archbishop  Whately, — who  makes  use  of  the  above  anecdote  in  his 
diverting  "Historic  Doubts  relative  to  Napoleon  Buonaparte," — • 
adds,  "  Truly  this  evidence  is  such  as  country  people  give  one  for  a 
story  of  apparitions;  if  you  discover  any  signs  of  incredulity,  they 
triumphantly  show  the  very  house  which  the  ghost  haunted,  the 
identical  dark  corner  where  it  used  to  vanish,  and  perhaps  even 
the  tombstone  of  the  person  whose  death  it  foretold."^  So,  in  the 
interesting  story  of  ''  The  Amber  Witch,"  the  poor  girl  charged 
with  witchcraft, — after  complaining  that  she  was  the  victim  of  the 
sheriff,  who  wished  to  do  "wantonness  with  her," — added,  that  he 
had  come  to  her  dungeon  the  night  before  for  that  purpose,  and  had 
struggled  with  her,  "  whereupon  she  had  screamed  aloud,  and  had 
scratched  him  across  the  nose,  as  might  yet  be  seen,  wherupon  he 
had  left  her."  To  this  the  sheriff  replied,  "  that  it  was  his  little 
lap-dog,  called  Below,  which  had  scratched  him,  while  he  played 
with  it  that  very  morning,"  and  having  produced  the  dog,  the  court 
were  satisfied  with  the  truth  of  his  explanation.^ 


§  558.  Turning  once  more  to  matters  of  graver  import,  it  may    g  502 
be  observed  that  in  causes,  either  relating  to  disputed  rights  of  way, 


^  Sec.  Part  of   Hen.  6,  act  4,  scene  2. 

2  p.  28,  6th  ed. 

^  Amber  Witch,  translated  by  Lady  Duff  Gordon,  p.  78 — 80. 

(3368) 


CHAP.  VI.]  ORDER  TO  VIEW  THE  SPOT  IN  DISPUTE.  501 

or  involving  some  question  which  depends  on  the  relative  position 
of  places,  it  is  often  desirable  that  the  jury  should  have  an  oppor- 
tunity of  viewing  the  spot  in  controversy;  '  since  the  knowledge 
derived  by  these  means  is  far  more  satisfactory  than  any  obtainable 
by  the  mere  examination  of  maps  and  plans,  which  are  often  inac- 
curate and  obscure,  and  may  perhaps  have  been  prepared  with  an 
express  view  to  mislead.  The  attention  of  the  Legislature  having 
been  drawn  to  this  subject,  a  clause  was  inserted  in  the  Jury  Act 
of  1825,^  which  enacts  in  substance,  that  when  in  any  case,  either 
civil  or  criminal,  or  on  any  penal  statute,  depending  in  one  of  the 
superior  courts  of  law,  it  shall  appear  proper  that  some  of  the  jurors 
shall  have  a  view  of  the  place  in  question,  in  order  to  their  better 
understanding  the  evidence  that  may  be  given  at  the  trial,  the 
court  or  a  judge  may  order  that  a  writ  shall  be  drawn  up  for  such 
purpose.  As  the  machinery  under  this  statute  was  needlessly  cum- 
brous, a  provision  was  introduced  into  the  Common  Law  Procedure 
Act  of  1852,^  to  simplify  the  practice  by  substituting  a  rule  for  a 
view  in  the  place  of  the  old  writ  ;  and  the  judges,  in  order  further 
to  facilitate  the  mode  of  procedure,  subsequently  passed  a  resolu- 
tion, that  "the  rule  for  a  view  may,  in  all  cases,  be  drawn  up  by 
the  officer  of  the  court,  on  the  application  of  the  party,  without  a 
motion  for  that  purpose."  * 

§  559.   Still,  as  the  Act  of  1825  speaks  merely  of  viewing  "the    §  503 
place  in  question,"  a  view  could  seldom  be  granted  by  the  court. 


'  For  an  early  instance  of  this  practice,  see  Mossam  ii  Ivy,  10  How.  St.  Tr. 
562,  631 ;  a  case  tried  in  1684. 

''6G.4,  c.  50,  U  23&24. 

^  15  &  16  v.,  c.  76,  ^  111,  enacts,  that  "a  writ  of  view  shall  not  be  neces- 
sary or  used  ;  but  whether  the  view  is  to  be  had  by  a  common  or  special 
jury,  it  shall  be  sufficient  to  obtain  a  rule  of  the  court  or  judfje's  order, 
directing  the  view  to  be  had  ;  and  the  proceedings  upon  the  rule  for  a  view 
shall  be  the  same  as  the  proceedings  heretofore  had  under  a  writ  of  view  ; 
and  the  sheriflf,  upon  request,  shall  deliver  to  either  party  the  names  of  the 
viewers,  and  also  shall  return  their  names  to  the  associate,  for  the  purpose  of 
their  being  called  as  jurymen  upon  the  trial."  See,  also,  34  &  35  V.,  c.  65, 
§  38,  Ir.,  as  to  the  Irish  practice;  and  Eeg.  Gen.  24  V.,  r.  75,  6  H.  &  N.  xiii., 
as  to  the  practice  on  the  Revenue  side  of  the  Queen's  Bench  Division. 

*  Reg.  Gen.,  H.  T.,  1853,  r.  48.  As  to  what  the  aftldavit  in  support  of  the 
application  must  contain,  and  as  to  costs,  see  id.,  r.  49,  cited  1  E.  &  B.  App.  xi. 

(3369) 


502  ORDER  TO  INSPECT  PROPERTY  IN  DISPUTE,  [PART  II. 

except  m  actions  of  a  local  nature,  such  as  ejectment,  trespass  quare 
claiisum  fregit,  waste,  and  nuisance;  and  Mr.  Baron  Parke  even 
lield  that  the  enactment  was  inapplicable  to  a  case,  where  an  action 
was  "brought  to  recover  the  value  of  work  done  to  the  defendant's 
house,  and  the  defence  rested  on  the  alleged  bad  quality  of  the 
work.^  The  construction  thus  put  upon  the  Act  proved  very 
clearly  that  the  Superior  Courts  possessed  no  adequate  powers 
for  ordering  a  view  even  in  the  case  of  a  house  ;  and  the  Common 
Law  Commissioners  were  not  slow  to  perceive,  that  in  numerous 
other  cases  an  inspection  of  chattels  before  trial,  either  by  the 
party,  his  witnesses,  or  the  jury,  might  be  of  great  advantage, — as, 
for  example,  when  the  quality  or  construction  of  machinery,  or  the 
condition,  value,  or  identity  of  goods  was  in  dispute.^  Accord- 
ingly, they  recommended  in  their  second  Report,  that  the  Superior 
Courts  of  Common  Law  should  be  intrusted  with  additional  powers 
for  ordering  the  inspection  of  premises  and  chattels,  and  their 
recommendation  was  carried  out  by  §  58  of  the  Common  Law  Pro- 
cedure Act,  1854.^ 

§  560.  As  that  section  is  now  repealed,*  it  is  needless  here  to  set    §  504 
out  its  provisions;  and  the  more  so  as  the  law  on  the  subject  is  at 
present  governed  by  the  Rules  of  the  Supreme  Court,  1883,  which 
in  Ord.  L.  provide  as  follows  : — 

R.  3.  "  It  shall  be  lawful  for  the  court  or  a  judge,  upon  the 
application  of  any  party  to  a  cause  or  matter,  and  upon  such  terms 
as  may  be  jiist,  to  make  any  order  for  the  detention,  preservation  or 
insiiection  of  any  x)roperty  or  thing,  being  the  subject  of  such  cause 
or  matter,  or  as  to  which  any  question  may  arise  therein,  and  for  all 
or  any  of  the  purposes  aforesaid  to  authorise  any  j^^^sons  to  enter 
upon  or  into  any  land  or  building  in  the  possession  of  any  party  to 
such  cause  or  matter,  and  for  all  or  any  of  the  purposes  aforesaid  to 
authorise  any  samples  to  be  taken,  or  any  observation  to  be  made  or 
experiment  to  be  tried,  which  may  be  necessary  or  expedient  for  the 
purpose  of  obtaining  full  information  or  evidence." 

R.  4.   "It  shall  be  lawful   for  any  judge,   by  whom  any  cause   or 


1  Stones  V.  Menhem,  2  Ex.  R.  382.  "^  2d  Rep.  p.  37. 

8  17  &  18  v.,  c.  125.  ♦  46  &  47  V.,  c.  49. 

(3370) 


CHAP.  VI.]  ORDER  TO  INSPECT  PROPERTY  IN  DISPUTE,  503 

matter  may  be  heard  or  tried  with  or  without  a  jury,  or  before 
whom  any  cause  or  matter  may  be  brought  by  way  of  appeal,  to 
inspect  any  property  or  thing  concerning  which  any  question  may 
arise  therein." 

R.  5.  "  The  provisions  of  Rule  3  of  this  Order  shall  apply  to 
inspection  by  a  jury,  and  in  such  case  the  court  or  a  judge  may 
make  all  such  orders  upon  the  sheriff  or  other  person  as  may  be 
necessary  to  procure  the  attendance  of  a  special  or  common  jury 
at  such  time  and  place,  and  in  such  manner  as  they  or  he  may 
think  fit." 

R.  6  next  provides,  that  an  application  for  an  order  under  R.  3 
may  be  made  to  the  court  or  a  judge  by  any  party.  "  If  the  appli- 
cation be  by  the  plaintiff,  it  may  be  made  after  notice  to  the 
defendant  at  any  time  after  the  issue  of  the  writ  of  summons, 
and  if  it  be  by  any  other  party,  then  on  notice  to  the  plaintiff, 
and  at  any  time  after  appearance  by  the  party  making  the 
application." 

§  561.  The  Irish  Act  of  16  *&  17  V.,  c.  113,  contains  a  clause,  I  504 a 
which,  though  quite  sufficiently  wordy,  attains  some  of  the  objects 
aimed  at  by  the  English  Rules;  for  §  47  provides,  that  "in  any 
case  in  which  it  shall  appear  to  the  court  or  a  j  tidge,  that  it  would 
be  necessary,  for  the  purpose  of  ascertaining  the  truth  of  any 
matter  in  dispute  between  the  parties  in  the  action,  that  an  inspec- 
tion or  examination  of  any  premises  or  chattels  in  the  possession  or 
power  of  either  party,  and  in  respect  of  which,  or  some  right  or 
injury  connected  with  which,  the  said  action  shall  be  brought, 
should  be  had  by  the  opposite  party,  his  attorney,  agent,  witnesses, 
or  by  the  jury,  it  shall  be  lawful  for  such  court  or  judge  to  order 
that  the  party,  in  whose  possession  or  power  the  same  shall  be,  shall 
permit  an  inspection  and  examination  of  the  said  premises  or  chattels 
by  the  jury,  or  by  such  person  or  persons  on  behalf  of  the  party 
applying,  and  at  such  times  and  under  such  regulations,  as  to  the 
said  court  or  judge  shall  seem  fit."  The  Patents,  Designs,  and 
Trade  Marks  Act,  1883,'  which  extends  equally  to  England  and 
Ireland,  recognises  the  same  principle;  and,  under  §  30  of  that 
statute,    either  party   may,  in   an  action  for  the  infringement  of  a 


1  46  &  47  v.,  c.  57. 

(3371) 


504  POWER  TO  ORDER  A  VIEW,  [PART  II, 

patent,  obtain  such  an  order  for  an  inspection'  as  the  court  or  a 
judge  may  think  tit  to  grant. 

§  562.  All  these  powers  to  order  views  of  places  or  inspection  of  g  505 
property,  whether  granted  by  statute  or  rule,  give  to  the  courts  and 
judges,  by  implication,  authority  to  order  all  things  ancillary  to  the 
view  or  inspection  required.  Where,  therefore,  a  wall  had  recently 
been  erected  in  a  mine,  so  as  to  obstruct  a  complete  inspection  of 
the  workings,  the  court,  on  a  question  of  encroachment,  ordered  the 
removal  of  such  obstruction.^ 

§  564.  The  Admiralty  Court  Act,  1861,-^  contains  in  §  18  an  §  505u 
enactment  on  the  same  subject,  which  enables  any  party  to  apply 
to  that  Court  "for  an  order  for  the  inspection  by  the  Trinity 
Masters  or  others  appointed  for  the  trial  of  the  cause,  or  by  the 
party  himself  or  his  witnesses,  of  any  ship  or  other  personal  or 
real  property,  the  inspection  of  which  may  be  material  to  the  issue 
of  the  cause;  and  the  court  may  make  such  order  in  respect  of 
the  costs  arising  thereout  as  to  it  shall  seem  fit."  * 

§  565.  Under  the  Rules  of  the  Supreme  Court,  1883,  "  where 
any  cause  or  matter,  or  any  question  in  any  cause  or  matter,  is  re- 
ferred to  a  Referee,  he  may,  subject  to  the  order  of  the  court  or  a 
judge,"  (among  other  things)  "have  any  inspection  or  view,  either 
by  himself  or  with  his  assessors,  if  any,  which  he  may  deem 
expedient  for  the  better  disposal  of  the  controversy  before  him."  * 

§  566.  These  are  admirable  provisions  so  far  as  they  extend,  but    §  506 
as  a  question  of  policy  it  will  scarcely   admit  of  a  doubt,  that  the 
power  of  granting   a  view,   or  inspection,  which, — except  in  the 
special    cases  of  County    Courts,^  Barmote    Courts^    and    Courts- 


1  See  Vidi  i\  Smith.  3  E.  &  B.  9G9,  974;  Patent  Type  Found.   Co.  v.  Lloyd, 
H.  &  N,  192;  Patent  Type  Found.  Co.  v.  Walter.  1  V.  John.  727. 

2  Bennett  v.  Griffiths,  3  E.  &  E.  407. 

*  24  &  25  v.,  c.  10.     See,  also,  30  &  31  V.,  c.  114,  I  66,  Ir. 

*  See  The  Germania,  37  L.  J.,  Adm.  59. 

*  Ord.  XXXVI. ,  R.  48. 

«  Cy.  Ct.  Rules,  1875,  Ord.  XI. 

^  See  14  &  15  v.,  c.  94,  1  Sch.,  g§  22—28,  and  2  Sch.  Form. 

(3372) 


CHAP.  VI.]  POWER  TO  ORDER  A  VIEW.  505 

martial,' — is  at  present  confined,  both  in  England  and  in  Ireland,  to 
the  judges  of  the  Supreme  Court,  and  to  proceedings  in  one  or  other 
of  the  Divisions  of  that  Court,  might  with  great  advantage  be 
extended  to  every  court  of  record.  It  must  also  be  borne  in  mind 
that,  as  the  law  now  stands,  the  New  Rules,  cited  in  §  560,  simply 
apply  to  cicil  proceedings  ia  the  Supreme  Court,"  and  consequently, 
in  all  criminal  proceedings,  the  practice  respecting  views  still 
rests  on  the  inadequate  provisions  of  the  Acts  of  1825  and  1852.^ 
It  further  deserves  consideration,  whether  it  be  not  expedient  to 
empower  the  presiding  judge  at  any  trial  to  order  a  view,  even 
after  the  evidence  may  have  been  heard,*  if  in  his  opinion  such  a 
step  is  necessary  for  the  purposes  of  justice. 

1  44  &45  v.,  c.  58,  |  53,  subs.  7. 

^  Rules  of  Sup.  Ct.,  1883,  Ord.  LXVIII.,  E.  1. 

3  6  G.  4,  c.  50,  U  23  and  24 ;  15  &  16  V.,  c.  7G,  |  114,  both  cited  ante, 
p.  501. 

*In  R.  V.  Martin,  1  Law  Rep.,  C.  C.  378;  12  Cox,  204;  41  L.  J.,  M.  C. 
113,  S.  C. ;  the  Court  of  Crim.  Appeal  is  reported  to  have  held,  that  the 
Deputy  Assistant  Judge  for  the  Middlesex  Sessions,  on  the  trial  of  a  misde- 
meanor, was  empowered  to  allow  the  jury  to  have  a  view  of  the  premises  in 
question,  after  he  had  summed  up  the  evidence  to  them.  In  this  case,  how- 
ever, there  was  no  argument  heard,  and  the  attention  of  the  judges  was  not 
directed  to  any  of  the  statutes  on  the  subject. 


(3373) 


506  EXPLANATION  OF  HEARSAY.  [PART  II. 


CHAPTER  VII. 

HEARSAY. 

§  567.'  As  evidence  afforded  by  our  own  senses  is  seldom  at-  §  507 
tainable  in  judicial  trials,  the  law  is  satisfied  with  requiring  the 
next  best  evidence,  namely,  the  testimony  of  those  who  can  speak 
from  their  own  personal  knowledge.  It  is  not  requisite  that  the 
witness  should  have  personal  knowledge  of  the  main  fact  in  con- 
troversy ;  for  this  may  not  be  provable  by  direct  testimony,  but 
only  by  inference  from  other  facts  shown  to  exist.  But  it  is 
requisite  that,  whatever  facts  the  witness  may  speak  to,  he  should 
be  confined  to  those  lying  within  his  own  knowledge,  whether 
they  be  things  said  or  done,  and  should  not  testify  from  informa- 
tion given  by  others,  however  worthy  of  credit  they  may  be.  For 
it  is  deemed  indispensable  to  the  proper  administration  of  justice, 
— first,  that  every  witness  should  give  his  testimony  under  the 
sanction  of  an  oath,  or  its  equivalent,  a  solemn  aifirmation, — and 
secondly,  that  he  should  be  subject  to  the  ordeal  of  a  cross- 
examination  by  the  party  against  whom  he  is  called,  so  that  it 
may  appear,  if  necessary,  what  were  his  powers  of  perception,  his 
opportunities  for  observation,  his  attentiveness  in  observing,  the 
strength  of  his  recollection,  and  his  disposition  to  speak  the  truth. 
But  testimony  from  the  relation  of  third  persons,  even  where  the 
informant  is  known,  cannot  be  subjected  to  these  tests  ;  for,  as 
Mr.  Justice  Buller  observes,  "If  the  first  speech  were  without 
oath,  another  oath  that  there  was  such  speech  makes  it  no  more 
than  a  mere  speaking,  and  so  of  no  value  in  a  court  of  justice ;"" 
besides,  it  is  often  impossible  to  ascertain  through  whom,  or  how 
many  persons,  the  narrative  has  been  transmitted,  from  the 
original  witness  of  the  fact.  It  is  this,  which  constitutes  that 
sort  of  second-hand  evidence,  termed  hearsay  ;   a  species  of  proof 

1  Gr.  Ev.  g  98,  in  great  part.  ^  g   j^   p   394,  b. 

(3374) 


CHAP.  VII.]  HEARSAY  INADMISSIBLE.  507 

which,  with  a  few  exceptions  that  will  be  presently   noticed,  cannot 
be  received  in  judicial  investigations.' 

§  568.  This  rule  of  exclusion  has  been  recognised  as  a  funda-  ?  508 
mental  principle  of  the  law  of  evidence  ever  since  the  time  of 
Charles  the  Second;-  and  so  strictly  is  it  enforced  that  it  is  even 
held  applicable  to  cases,  in  which,  if  the  declaration  be  rejected,' 
no  other  evidence  can  possibly  be  obtained;  as,  for  example,  where 
the  declaration  purports  to  be  that  of  the  only  eye-witness  of  the 
transaction,  and  he  is  since  dead.^  So,  it  has  several  times  been 
held,  where  prisoners  have  been  indicted  for  ravishing  children, 
who  were  too  young  to  be  admissible  witnesses,  that  statements 
made  by  the  children  to  their  mothers  shortly  after  the  offence 

^  The  rule  excluding  hearsay  evidence,  or  rather  the  mode  in  which  that 
rule  is  Irequently  misunderstood  in  courts  of  justice,  is  amusingly  caricatured 
by  Mr.  Dickens  in  his  report  of  the  case  of  Bardell  t\  Pickwick,  p.  367: — 

"  '  I  believe  you  are  in  the  service  of  Mr.  Pickwick,  the  defendant  in  this 
case.     Speak  up  if  you  please,  INIr.  Weller.' 

"  '  I  mean  to  speak  up,  sir,'  replied  Sam.  '  I  am  in  the  service  o'  that  'ere 
gen'l'man,  an  wery  good  service  it  is.'  . 

'■  '  Little  to  do,  and  j)leuty  to  get,  I  suppose  ?  '  said  Serjeant  Buzfuz,  with 
jocularity. 

"  '  Oh  quite  enough  to  get,  sir,  as  the  soldier  said  ven  they  ordered  him  three 
hundred  and  fifty  lashes,'  replied  Sam. 

"  '  You  must  not  fell  us  tvhat  the  soldier,  or  any  other  man,  said,  sir,'  interposed 
the  judge,   '  iVs  not  evidence.'' 

"  '  Wery  good,  my  lord,'  replied  Sam." 

^  One  of  the  earliest  cases  in  which  the  rule  was  acted  uiion,  is  Sampson  v. 
Yardley,  2  Keb.  223,  PL  74,  19  Car.  2. 

^  1  Ph.  Ev.  209.  In  Scotland  the  rule  is  otherwise;  evidence  on  the  relation 
of  others  being  admitted,  where  the  relator  is  since  dead,  and  would,  if  living, 
have  been  a  competent  witness. — 1  Dickson,  Ev.  66,  67;  Dysart  Peer.,  L.  R.,  6 
App.  Gas.  489.  In  this  last  case  the  extent  of  the  rule  and  the  exceptions  to 
which  it  is  subject,  are  discus.sed  at  some  length.  It  seems  that  even  where 
the  relation  has  been  handed  down  to  the  witness  at  second  hand,  and  through 
several  successive  relators,  each  only  stating  what  he  received  from  the  inter- 
mediate relator,  it  will  still  be  admissible,  if  the  original  and  intermediate 
relators  are  all  dead,  and  would  have  been  comjieteut  witnesses  if  living. 
Tait,  Ev.  430,  431 ;  but  see  1  Dickson,  Ev.  70.  The  reason  for  receiving  hear- 
say evidence  in  cases,  where,  as  is  often  the  case  in  Scotland,  the  judges  deter- 
mine upon  the  facts  in  dispute,  as  well  as  upon  the  law,  is  stated  and  vindicated 
by  Sir  J.  Mansfield,  in  the  Berkeley  Peer.,  4  Camp  415.  It  is  observable,  that, 
according  to  the  practice  of  the  English  courts,  hearsay  evidence  is  often 
admitted  and  acted  upon  iu  affidavits,  which  are  submitted  to  the  judges  only. 

(3375) 


508  HEARSAY  INADMISSIBLE.  [pART  II. 

was  committed,  could  not  be  received  in  evidence.'  So,  also,  a 
declaration,  though  made  on  oath,  and  in  the  course  of  a  judicial 
proceeding,  cannot  bo  received,  if  the  litigating  xmrties  are  not 
the  same;  because,  ia  such  case,  the  party  against  whom  the 
evidence  is  offered,  has  had  no  opportunity  of  cross  examining 
the  declarant.  The  deposition  therefore  of  a  pauper  as  to  the 
place  of  his  settlement,  taken  ex  parte  before  a  magistrate,  will 
be  rejected,  though  the  pauper  himself  has  since  absconded  or 
died." 


§  569.  The  rule  will  even  exclude  declarations  of  a  deceased  §  509 
subscribing  witness  to  a  deed  or  will,  in  disparagement  of  the 
evidence  afforded  by  his  signature.  In  the  case  of  Stobart  v. 
Dryden,^  the  admissibility  of  such  declarations  was  strenuously 
urged  on  two  grounds;  first,  that  since  the  party  offering  the 
deed  used  the  declaration  of  the  witness,  as  evidenced  by  his 
signature  to  prove  the  execution,  the  other  party  might  well 
be  permitted  to  use  any  other  declaration  of  the  same  witness, 
to  disprove  it;  and,  secondly,  that  such  declaration  was  in  the 
nature  of  a  substitute  for  the  loss  of  the  benefit  of  a  cross-exami- 
nation of  the  subscribing  witness;  by  which  either  the  fact  con- 
fessed would  have  been  proved,  or  the  witness  might  have  been 
contradicted,  and  his  credit  impeached.  Both  these  grounds 
were  overruled  by  the  Court;  the  first,  because  the  evidence 
of  the  handwriting  in  the  attestation  is  not  used  as  a  declaration 
by  the  witness,  but  is  offered  merely  to  show  the  fact  that  he  put 
his  name  there,  in  the  manner  in  which  attestations  are  usually  ■ 
placed  to  genuine  signatures;  and  the  second,  chiefly  because  of 
the  mischiefs  which  would  ensue,  if  the  general  rule  excluding 
hearsay  were  thus  broken  in  upon.  For  the  security  of  solemn 
instruments  would  thereby  become  much  impaired,  and  the  rights 


1  R.  V.  Brasier,  1  Lea.  199;  1  East,  P.  C.  443,  S.  C. ;  R.  t\  Nicholas,  2  C.  & 
Kir.  246,  per  Pollock,  C.  B. 

'^  R.  V.  Nuneham  Courtney,  1  East,  373;  R.  v.  Ferry  Frystone,  2  East,  54;  R. 
V.  Abergwilly,  id.  G3;  Mima  Queen  v.  Hepburn,  7  Cranch,  29G. 

3  1  M,  &  W,  615,  623,  624,  627. 

(3376) 


CHAP.  VII.]  GROUNDS  FOR  EXCLUDING  HEARSAY.  509 

of  parties  under  them  would  be  liable  to  be  affected  at  remote 
periods  by  loose  declarations  of  the  attesting  witnesses,  which  could 
neither  be  explained,  nor  contradicted,  by  the  testimony  of  the 
witnesses  themselves.  In  admitting  such  declarations,  too,  there 
would  be  no  reciprocity;  for  although  the  party  impeaching  the 
instrument  would  thereby  have  an  equivalent  for  the  loss  of  his 
power  of  cross  examination  of  the  living  witness,  the  other  party 
would  have  none  for  the  loss  of  his  power  of  re-examination. 


§  570.'  The  term  hearsay  is  used  with  reference  to  what  is  done  §  510 
or  written,  as  well  as  to  what  is  spoken;  and,  in  its  legal  sense, 
it  denotes  that  kind  of  evidence  which  does  not  derive  its  value 
solely  from  the  credit  given  to  the  witness  himself,  but  which 
rests  also,  in  part,  on  the  veracity  and  competence  of  some  other 
person.^  That  this  species  of  evidence  is  not  given  upon  oath, 
that  it  cannot  be  tested  by  cross  examination,  and  that  it  supposes 
some  better  testimony,  which  might  be  adduced  in  the  particular 
case,  are  not  the  sole  grounds  for  its  exclusion.  Its  tendency  to 
protract  legal  investigations  to  an  embarrassing  and  dangerous 
length,  its  intrinsic  weakness,^  its  incompetency  to  satisfy  the 
mind  as  to  the  existence  of  the  fact,  and  the  frauds  which  may  be 
practised  with  impunity  under  its  cover,  combine  to  support  the 
rule  that  hearsay  evidence  is  inadmissible.*. 

§  571.  It  cannot,  however,  be  denied,  that  the  rule  excluding  §  511 
hearsay  evidence,  though  in  general  admirably  calculated  for  trials 
before  popular  tribunals,  may  in  many  instances  work  consider- 
able injustice.  For  example,  on  a  question  respecting  the  com- 
petency of  a  testator,  the  conduct  of  his  family  or  relations  taking 
the  same  precautions  in  his  absence  as  if  he  were  a  lunatic,  or  his 
election  in  his  absence  to  some  high  and  responsible  office,  or  the 
conduct  of  a  physician  who  permitted  him  to  execute  a  will, — all 


1  Gr   Ev.  I  99,  in  great  part.  ^  1  Ph.  Ev.  185. 

^  "  Pluris  est  oculatus  testis  unus,  quam  auriti  decern; 
Qui  audiunt,  audita  dicunt,  vui  vident,  plane  sciunt." 

Plaut.  Trucu,  Act  2,  sc.  G,  1,8,  9. 
*  Per  Marshall,  C.  J.,  in  Mima  Queen  v.  Hepburn,  7  Cranch,  290,  295,  296  ; 
Davis  V.  Wood,  1  Wheat.  6,  8;  R.  v.  Eriswell,  3  T.  R.  707. 

(3377) 


510  EXCLUSION  OF  HEARSAY  SOMETIMES  UNWISE.         [PAKT  II. 

these,  when  considered  with  reference  to  the  matter  in  issue,  are 
mere  instances  of  hearsay  evidence,  mere  statements,  expressed  in 
the  language  of  conduct  instead  of  the  language  of  words;  and, 
consequently,  they  are  inadmissible  in  a  court  of  justice,  although 
in  the  ordinary  transactions  of  life  they  would  deservedly  be  con- 
sidered as  cogent  moral  proof.'  So,  on  a  question  of  seaworthi- 
ness, the  fact  that  a  deceased  captain,  after  examining  every 
part  of  the  vessel,  embarked* in  it  with  his  family, — and,  on  a 
question  respecting  the  loss  of  insured  property,  the  fact  that 
other  underwriters  have  paid  on  the  same  policy,^ — cannot  be 
received  in  evidence.  On  the  same  ground  the  fact,  that,  after 
the  issuing  of  a  fiat,  certain  creditors  of  the  bankrupt  returned 
to  his  assignees  goods  which  they  had  received  from  the  bank- 
rupt before  he  delivered  other  goods  to  the  defendant,  was,  in  an 
action  of  trover  brought  by  the  assignees,  held  inadmissible,  as 
proof  that  an  act  of  bankruptcy  had  been  committed  prior  to  the 
time  when  the  goods  came  into  the  hands  of  the  defendant;'^  and, — 
not  to  multiply  instances,* — where  a  servant  was  indicted  for  per- 
jury, in  saying  that  her  deceased  mistress  had  never  had  a  child, 
declarations  of  the  mistress  were  rejected  as  evidence  for  the 
Crown,^  although,  in  action  of  ejectment,  where  the  same 
question  was  in  issue,  and  the  words  charged  as  perjury  were 
uttered,  such  evidence  was  admitted,  as  relating  to  a  matter  of 
pedigree.® 

§  572.  In  most  of  the  instances  given  above,  as  illustrating  the  §  512 
occasional  inconvenience  of  the  rule,  the  evidence  rejected  amounted 
to  something  more  than  the  mere  declarations  of  parties  not  ex- 
amined on  oath,  nor  subjected  to  cross-examination;  for  these 
declarations  ivere  accompanied  by  acts  done  in  confirmation  of  their 
sincerity,  and  as  such,  the  evidence  was,  morally  speaking,  entitled 
to  great  weight.     The  law,  however,  will  not  on  this  account  allow 


I  Wright  I'.    Doe  d.  Tatham,  7  A.  &  E.  388,  per  Parke,  B.;  4  Bing.    N.  C. 
54,  per  Vaughan,  J.  *  7  A.  &  E.  387,  388. 

3  Backhouse  v.  Jones,  6  Bing.  N.  C.  65;  8  Scott,  148,  S.  C. 
*  See  Gresham  Hotel  Co.  v.  Manning,  I.  R.,  1  C.  L.  125. 
s  Heath's  case,  18  How.  St.  Tr.  68,  76. 
6  Annesley  v.  D.  of  Anglesea,  17  How.  St.  Tr.  1175,  1188. 

(3378) 


CHAP.  VII.  J  DOE  D.  TATHAM  V.  WRIGHT.  511 

any  exception  to  be  made  in  favor  of  hearsay;  for  although,  if  an 
act  done  be  evidence  per  se,  any  declarations  accompanying  that  act 
are, — as  we  shall  presently  see,' — admissible  for  the  purpose  of 
illustrating,  qualifying,  or  completing  it;  yet,  if  the  act  be  in  its 
own  nature  irrelevant  to  the  issue,  and  the  declaration  be  inadmis- 
sible, the  union  of  the  two  cannot  render  them  evidence.^ 

§  573,  This  question  was  much  discussed  in  the  great  case  of  ?  513 
Doe.  d.  Tatham  v.  Wright,^  where  the  title  to  the  property  in  dis- 
pute depended  upon  the  competency  of  Mr.  Marsden  to  make  a  will. 
The  cause  was  tried  four  times,  and  as  often  debated  in  the  Superior 
Courts,  till  at  length  in  the  House  of  Lords  it  was  decided  by  all 
the  judges,  that  letters  addressed  to  a  person,  whose  sanity  is  the 
fact  in  question,  unless  connected  in  evidence  with  some  act  done 
by  him  in  relation  thereto,  are  inadmissible  to  show  that  he  was 
sane,  though  the  writers  were  since  dead,  and  the  party  addressed 
was  treated  in  the  letters  as  an  intelligent  man.  A  great  majority 
of  the  learned  judges  also  held  upon  that  occasion,  that  the  mere 
fact  of  finding  such  letters,  many  years  after  they  were  written, 
with  the  seals  broken,  in  company  with  other  papers  bearing  in- 
dorsements in  the  testator's  handwriting,  in  a  cupboard  under  his 
bookcase  in  his  private  room,  was  insufficient  to  raise  an  inference 
that  they  had  been  read,  understood,  or  acted  upon  by  him;  since, — - 
although  letters,  found  in  such  a  situation,  would  no  doubt  be  evi- 
dence against  a  party  criminally  accused  or  civally  charged,  because, 
on  the  tacit  supposition  that  he  was  a  man  of  sound  mind,  it  would 
be  presumed  that  he  was  cognizant  of  their 'contents;* — yet,  to 
make  such  a  supposition,  where  the  capacity  of  the  party  was  the 
matter  in  controversy,  would  be  to  argue  in  a  circle.  The  reasoning, 
in  fact,  would  proceed  thus : — because  the  testator  had  sufficient 
ability  to  transact  business,  therefore  the  inference  arises  that  he 


'  Post,  ?  583,  et  seq. 

27  A.  &E.  361;  4  Bing.  N.  C.  498.     See  Gresham  Hotel  Co.  r.  Manning, 
I.  R.,  1  C.  L.  125. 

»See    2    Russ.   &  Myl.  1;  1  A.  &  E.  3  ;  3  N.  &  M.  2G0  ;  7  A.  &  E.  313  ;  6 
N.  &  M.  132;  4  Bing.  N.  C.  489,  S.  C. 

*  See  7  A.  &  E.   369,   per  Gurney,  B. ;  id.  376,  per  Bosanquet,  J.;  4  Bing. 
N.  C.  531.  ner  Alderson,  B. 

(3379) 


512  SANITY  NOT  PROVABLE  BY  EVID.  OF  TREATMENT.      [PABT  II. 

read  and  understood  the  letters;  and  because  he  read  and  under- 
stood the  letters,  therefore  the  inference  arises  that  he  had  sufficient 
ability  to  transact  business.' 

§  574  Had  the  testator,  in  tlie  case  just  put,  indorsed  these  ^  .514 
letters  himself,  or  could  any  direct  or  positive  evidence  have  been 
given  to  show  that  he  had,  whether  by  act,  speech,  or  writing, 
manifested  a  knowledge  of  their  contents,  it  is  clear  that  the  letters 
could  not  have  been  rejected,  or  in  any  way  withdrawn  from  the 
consideration  of  the  jury;  for  although  they  would  then  have  been 
admitted  solely  on  the  technical  ground  that  they  explained  and 
illustrated  his  conduct,  no  rule  of  law  could  have  prevented  theni 
from  operating  with  fall  effect  upon  the  minds  of  the  jury,  as  show- 
ing the  unbiassed  opinions  of  the  writers,  and  in  what  manner  the 
testator  had  been  treated  by  them.^ 

§  575,  When  the  ecclesiastical  tribunals  were  courts  of  probate,  g  515 
they  adopted  a  different  rule  from  that  established  by  the  case  of 
Doe  d.  Tatham  v.  Wright;  and  in  questions  respecting  the  mental 
capacity  of  a  testator,  they  admitted,  as  evidence  of  treatment, 
letters  written  to  him  by  his  friends,  without  proof  of  any  recog- 
nition on  his  part,'* — and,  as  evidence  of  opinion,  letters  written  by 
his  relatives  even  to  other  parties.*  These  decisions,  however,  are 
now,  it  is  feared,  of  no  importance,  as  the  Probate  Division  is  bound 


1  See  7  A.  &  E.  391,  per  Parke,  B.;  4  Bing.  N.  C.  545,  per  id.;  id.  .'SSI,  per 
Alderson,  B.;  id.  502,  504,  per  Coleridge,  J.;  id.  525,  52G,  per  Patteson,  J. 
The  letters  rejected  in  tliis  case  were  three.  1st.  A  letter  of  gratitude  to  the 
testator  from  a  clergyman  to  whom  he  had  formerly  given  preferment;  2nd.  A 
letter  of  friendsliip  from  a  relative,  with  whom  the  testator  was  proved  to  have 
corresponded  three  years  afterwards  ;  3rd.  A  letter  advising  the  testator  to 
direct  his  attorney  to  take  steps  in  a  transaction  in  a  certain  parish.  This 
letter  was  indorsed  by  the  attorney,  who  was  long  since  deceased.  Three  of 
the  judges  considered  that  all  the  letters  were  admis.sible,  six  thought  that  the 
last  was.  The  remaining  judges,  including  Lds.  Brougham,  Lyndhurst,  and 
Cottenham,  held  that  all  the  letters  were  alike  inadmissible. 

2  7  A.  &  E.  325,  per  Ld.  Denman;  4  Bing.  N.  C.  500,  per  Coleridge.  J.; 
id.  530,  per  Alderson,  B. ;  id.  510,  per  Williams,  J. ;  id.  567,  per  Tindal,  C.  J. 

^  Morgan  v.  Boys,  per  Sir  H.  Jenner,  cited  7  A.  &  E.  337;  Handley  v.  Jones, 
cited  id. ;  Waters  v.  Howlett,  per  Sir  J.  Nicholl,  cited  1  A.  &  E.  8. 
*  Wheeler  v.  Alderson,  3  Hagg.  Ec.  R.  574,  609,  per  Sir  J.  Nicholl. 

(3380) 


CHAP.  VII.]  HEARSAY  AND  ORIGINAL  EVIDENCE — DISTINCTION.  513 

to  recognise  the  rules  of  evidence  observed  in  the  other  Divisions  of 
the  High  Court.' 


§  576.^  In  considering  this  branch  of  the  law  of  evidence,  care  §  51( 
must  be  taken  to  distinguish  clearly  between  hearsay  evidence  and 
that  which  is  deemed  original.  For  it  does  not  follow  that,  because 
the  writings  or  words  in  question  are  those  of  a  third  person  not 
under  oath,  they  are  therefore  to  be  considered  as  hearsay.  On  the 
contrary,  it  often  happens  that  the  very  fact  in  controversy  is, 
whether  certain  things  were  written,  or  spoken,  and  not  whether 
they  were  true ;  and  at  other  times  the  oral  or  written  statements 
tendered  in  evidence  may  prove  to  be  the  natural  or  inseparable 
concomitants  of  the  principal  fact  in  controversy.^  In  either  of 
these  cases  it  is  obvious  that  the  writings  or  words  are  not  within 
the  meaning  of  hearsay,  but  are  original  and  independent  facts, 
admissible  in  proof  of  the  issue.  Thus,  if  the  question  be  whether 
a  party  has  acted  prudently,  wisely,  or  in  good  faith,  the  informa- 
tion on  which  he  acted,  whether  true  or  false,  is  original  and  material 
evidence.  This  *  is  often  illustrated  in  actions  for  malicious  pro- 
secution,^ or  libel  ;  ^  as  also  in  cases  of  agency  and  of  trusts.  For 
example,  in  an  action  for  malicious  prosecution,  when  the  plaintiff, — 
in  order  to  show  that  the  magistrate's  leniency  in  admitting  him  to 
bail  had  been  occasioned,  not  by  the  intercession  of  the  defendant, 
but  by  the  receipt  of  a  letter  said  to  have  come  from  a  judge, — 
tendered  such  letter  in  evidence,  it  was  held  to  be  admissible, 
without  proof  that  it  was  written  by  the  judge's  authority;  and,  in 
the  same  case,  an  affidavit  sworn  by  a  clerk  of  the  prosecutor's 
solicitor,  which  stated  that  means  had  been  taken  on  the  part  of  the 
prosecutor  to  prevent  a  person  from  becoming  bail  for  the  plaintiff, 
was  likewise  admitted  as  original  evidence,  without  the  clerk's  being 


1  20  &  21  v.,  c.  77,  I  33  ;  20  &  21  V..  c.  79,  ?  38,  Ir. ;  Sapr.  Ct.  of  Jud. 
Act,  1873,  3G  &  37  v.,  c.  66,  ^  16  ;  Supr.  Ct.  of  Jud.  Act,  1875,  38  &  39  V., 
c.  77,  ^  18. 

^  Gr.  Ev.  ^  100,  in  great  part. 

»  Bartlett  v.  Delprat,  4  Mass.  702,  708  :  Du  Bost  v.  Beresford,  2  Camp 
512.  ♦  Gr.  Ev.  §  101,  in  part. 

*  Ravenga  v.  Mackintosh,  2  B.  &  C.  693. 

®  Coleman  v.  Southwick,  9  Johns.  45. 

(3381) 


514   REPLIES  AND  GENERAL  REPUTE  WHEN  ORIGINAL  EVID.     [pART  11. 

called  to  prove  by  whose  instructions  he  had  made  the  afi&davit.' 
So,  the  replies  given  to  inquiries  made  at  the  residence,  either  of  an 
absent  witness,  or  of  a  bankrupt,  denying  that  he  was  at  home,  are 
original  evidence,  without  examining  the  persons  to  whom  the  in- 
quiries were  addressed ;  because  the  testimony  of  the  parties 
inquiring  is  sufficient  to  establish  the  denial,  which  is  the  only 
material  fact.  ^ 

§  577.^  Not  only  does  this  doctrine  apply,  whenever  the  fact  that  ?  '''I? 
a  certain  communication  was  made,  and  not  its  truth  or  falsehood, 
is  the  point  in  controversy  ;  *  but  it  extends  also  to  those  cases, 
where  the  truth  of  the  facts  in  dispute  will  be  inferred  from  the 
existence  of  another  fact  which  is  under  investigation.  Upon  these 
grounds  it  is  considered  that  evidence  of  general  re2Jutation,  re- 
puted ownership,  public  rumour,  general  character,  general  noto- 
riety, and  the  like,  though  composed  of  the  speech  of  third  persons 
not  under  oath,  is  original  evidence  and  not  hearsay;  the  imme- 
diate subject  of  inquiry  being  the  concurrence  of  many  voices, 
which  raises  a  presumption  that  the  fact  in  which  they  concur  is 
true." 


§  578.  Thus,  it  has  frequently  been  decided  that,  except  in  peti-  ^  517 
tions  for  damages  by  reason  of  adultery,  and  in  indictments  for 
bigamy,  where  strict  proof  of  marriage  is  required,®  general  rejjuta- 
Hon  is  admissible  to  establish  the  fact  of  parties  being  married. 
In  most  of  the  cases,  the  marriage  has  been  proved  by  evidence  of 
certain  specific  facts,  such  as  the  parties  being  received  into  society 
as  man  and  wife,  being  visited  by  respectable  families  in  the  neigh- 


1  Taylor  v.  AVillans,  2  B.  &  Ad.  845. 

-  Crosby  v.  Percy,  1  Taunt.  364  ;  Key  v.  Shaw,  8  Bing.  320  ;  Morgan  v. 
Morgan,  9  id.  359  ;  Svininer  v.  Williams,  5  Mass.  444  ;  Pelletreau  v.  Jackson, 
11  Wend.  110,  123,  124  ;  Phelps  v.  Foot,  1  Conn.  387.  Where  it  is  necessary 
to  show,  not  only  that  diligent  search  has  been  made  for  the  witness,  but  that 
he  is  actually  absent,  such  evidence  is  not  admissible.     See  ante,  ^g  475,  517. 

»  Gr.  Ev.  ?  101,  in  part. 

*  Whitehead  v.  Scott,  1  M.  &  Rob.  2  ;  Shott  v.  Strealfield,  id.  8. 

^  Foulkes  V.  Sellway,  3  Esp.  236  ;  Jones  v.  Perry,  2  id.  482  ;  B.  N.  P.  296, 
297  ;  Oliver  v.  Bartlett,  1  B.  &  B.  269  ;  Gurr  v.  Rutton,  Holt,  N.  P.  R.  327. 

^  See  ante,  §  172.  ; 

(3382) 


CHAP.  VII.]       GENERAL  NOTOKIETY  WHEN  ORIGINAL  EVIDENCE.  515 

bourhood,  attending  church  and  public  phices  together,  and  other- 
wise demeaning  themselves  in  public,  and  addressing  each  other, 
as  persons  actually  married.'  Still,  though  some  of  these  circum- 
stances are  receivable,  as  amounting  to  acts  of  admission  by  the 
parties  themselves,  those,  which  are  merely  evidence  of  the  treat- 
ment of  the  parties  by  third  persons,  cannot  be  admissible  on  any 
principle  that  would  not  equally  include  the  declarations  of  strangers. 
The  acts,  like  the  words,  merely  show  the  opinion  entertained  by 
persons  not  called  as  witnesses;  and  though  it  may  be  said,  that 
what  a  person  does  is  usually  better  evidence  of  his  opinion  than 
what  he  says,  yet  this  is  an  observation  which  goes  rather  to  the 
weight  than  to  the  admissibility  of  the  evidence.  Accordingly, 
general  evidence  of  reputation  in  the  neighbourhood,  even  when  un- 
supported by  facts,  or  when  partially  contradicted  by  evidence  of 
a  contrary  repute,^  will  be  receivable  in  proof  of  marriage;  and  in 
one  case  it  was  decided,  after  verdict,  that  the  uncorroborated  state- 
ment of  a  single  witness,  who  did  not  appear  to  be  related  to  the 
parties,  or  to  live  near  them,  or  to  know  them  intimately,  but  who 
asserted  that  he  had  heard  they  were  married,  was  sufficient,  prima 
facie,  to  warrant  the  jury  in  finding  the  marriage,  the  adverse  party 
not  having  cross  examined  the  witness,  nor  controverted  the  fact  by 
proof.^ 

§  579.  Upon  somewhat  similar  grounds,  it  has  been  held,  that,  on  §  517 
a  prosecution  for  conspiring  to  procure  large  meetings  to  assemble 
for  the  purpose  of  inspiring  terror  in  the  community,  a  witness 
might  be  called  to  prove  that  several  persons,  who  were  not  ex 
amined  at  the  trial,  had  complained  to  him  that  they  were  alarmed 
at  these  meetings,  and  had  requested  him  to  send  for  military  as- 
sistance;^ and,   on  a   question  whether  a   libellous    painting    was 


^  Kay  V.  Duchesse  de  Vienne,  3  Camp.  123;  Hervey  v.  Hervey,  2  W.  Bl. 
877;  Birt  v.  Barlow,  1  Doug.  174;  Read  r.  Passer,  1  E.sp.  214;  Leader  v. 
Barry,  id.  353;  Doe  v.  Fleming,  4  Bing.  266;  Goodman  v.  Goodman,  28  L. 
J.,  Ch.  1;  Smiths.  Smith,  1  Pliillim.  R.  294;  Hammick  v.  Bronson,  5  Day, 
290,  293;  In  re  Taylor,  9  Paige,  6. 

2  Lyle  V.  Ellwood,  19  Law  Rep.,  Eq.  98,  per  Hall,  V.-C;  44  L.  J.,  Ch.  164, 
S.  C;  Collins?).  Bishop,  43  L.  J.,  Ch.  31,  pes  Malins,  V.-  C. 

^  Evans  v.  Morgan,  2  C.  &  J.  453. 

*  R.  V.  Vincent,  9  C.  &  P.  275;  Redford  v.  Birley,  3  Stark.  R.  88—91. 
12  LAW  OF  EVID.— -V.  II.  (3383) 


516  EXrRKSSIONS  OF  BODILY  OR  MENTAL  FEELINGS.        [I'AET  II. 

made  to  represent  a  certain  individual,  the  declarations  of  spectators, 
while  looking  at  the  picture  in  tbe  exhibition,  have  been  admitted 
in  evidence.' 


§  580.^  Whenever  the  bodily  or  mental  feelings  of  an  individual  §  518 
are  material  to  be  proved,  the  usual  expressions  of  such  feelings, 
made  at  tbe  time  in  question,  are  also  original  evidence.  If  they 
were  tbe  natural  language  of  tbe  affection,  whether  of  body  or  mind, 
they  furnish  satisfactory  evidence,  and  often  the  only  proof,  of  its 
existence.  And  the  question  whether  they  were  real,  or  feigned,  is 
for  tbe  jury  to  determine.  Thus,  tbe  representations  by  a  sick 
person  of  tbe  nature  and  efiects  of  tbe  malady  under  which  he  is 
labouring,  are  receivable  as  original  evidence,  whether  they  be  made 
to  the  medical  attendant,  or  to  any  other  person,  though  the  former 
are  naturally  entitled  to  greater  weight  than  tbe  latter,  inasmuch 
as  a  physician  is  far  more  capable  than  a  man  unacquainted  with 
the  symptoms  of  diseases,  of  forming  a  correct  judgment  respecting 
the  accuracy  of  the  statements.''  This  doctrine  has  been  carried  to  ^ 
such  an  extent  that,  in  an  action  by  tbe  husband  upon  a  policy  of 
insurance  on  the  life  bis  wife,  where  tbe  question  related  to  the 
state  of  her  health  at  the  time  when  tbe  policy  was  effected,  a  wit- 
ness for  the  defendants  was  allowed  to  state  the  result  of  a  conver- 
sation she  bad  bad  with  the  deceased,  shortly  after  the  surgeon  who 
was  consulted  in  effecting  tbe  insurance  had  given  a  certificate  of 
her  health,  in  which  conversation  the  deceased  had  expressed  an 
apprehension  that  she  should  only  live  a  few  days,  and  had  added 
that  she  had  not  been  well  from  a  time  preceding  her  being  ex- 
amined by  the  surgeon.  The  court  held  that  tbe  conversation  was 
admissible,  notwithstanding  tbe  general  rule  which  at  that  time  ex- 
cluded the  declaration  of  a  wife  as  against  her  husband;  *  and  tbe 
more  especially  so,  as  tbe  surgeon  had  been  first   called   by  tbe 


^  Du  Bost  V.  Beresford,  2  Camp.  512,  per  Ld.  Ellenborough. 
2  Gr.  Ev.  ?  102,  in  part. 

*  Aveson  v.  Ld.  Kinnaird,  6  East,  188;  R.  v.  BLandy,  18  How.  St.  Tr. 
1135—1138;  Gardner's  Peer.,  79,  per  Copley,  Att.-Gen.  ;  Grey  v.  Young, 
4  M'C.  31;  Gilchrist  v.  Bale,  8  Watts,  355.  See  Witt  v.  Witt  and  Klind- 
worth,  3  Swab.  &  Trist.  143,  where  Sir  C.  Cresswell  rejected  letters  written 
by  a  patient  to  a  medical  man  describing  his  symptons.     Sed  qu. 

*  See,  now,  16  &  17  V.,  c.  83. 

(3384) 


CHAP.  VII.]       EXPRESSIONS  OF  BODILY  OR  MENTAL  FEELINGS.  517 

plaintiff,  and  bad  admitted  that  he  had  formed  his  opinion  respect- 
ing her  health,  principally  from  the  satisfactory  answers  which  she 
had  given  to  his  inquiries.* 


§  581.  So,  on  a  trial  for  murder  by  poisoning,  statements  made  ?  519 
by  the  deceased  in  conversation  shortly  before  he  took  the  poison, 
have  been  received  in  evidence  for  the  purpose  of  proving  the 
state  of  his  health  at  that  time;"  and,  on  the  same  ground,  it  has 
frequently  been  held,  in  actions  or  indictments  for  assault,  that 
what  a  man  has  said  about  himself  to  his  surgeon  was  evidence  to 
show  what  he  suffered  by  reason  of  the  assault.^  So,  on  an  indict- 
ment for  highway  robbery,  the  fact  that  the  prosecutor,  a  few 
hours  after  the  attack  made  upon  him,  complained  to  a  constable 
that  he  had  been  robbed,  will  perhaps  be  admissible;  though  the 
witness  cannot  be  further  asked  whether,  on  making  the  complaint, 
the  prosecutor  mentioned  the  name  of  the  prisoner.*  It  would 
seem,  also,  that,  in  prosecutions  for  rape,  proof  that  the  woman 
shortly  after  the  injury  complained  that  a  dreadful  outrage  had 
been  perpetrated  upon  her,  would  in  the  event  of  her  death,  be 
receivable  as  independent  evidence;^  and  if  the  prosecutrix  were 
called  as  a  witness,  such  complaints  would  a  fortiori  be  admissible 
as  tending  to  confirm  her  credit.®  In  no  case,  however,  can  the 
particulars  of  the-  complaint  be  disclosed  by  witnesses  for  the 
Crown,  either  as  original,  or  as  confirmatory  evidence,  but  the 
details   of  the    statement    can    only   be  elicited  by  the  prisoner's 


'  Aveson  r.  Ld.  Kinnaird,  6  East,  188. 

^  E.  V.  Johnson,  2  C.  &  Kir.  354,  per  Alderson,  B. ;  R.  r.  Blandy,  18  How. 
St.  Tr.  1135-1138. 

^  Aveson  v.  Ld.  Kinnaird.  G  East,  198,  per  Lawrence,  J. ;  11.  v.  Guttridge, 
9  C.  &  P.  472,  per  Parke,  B. 

*  R.  V.  Wink,  6  C.  &  P.  397;  commented  upon  by  Cresswell,  J.,  in  R.  v. 
Osborne,  C.  &  Marsh.  624. 

^  E.  V.  Megson,  9  C.  &  P.  420,  per  Rolfe,  B. ;  R.  r.  Osborne,  C.  &  Marsh.  624, 
per  Cresswell,  J.;  R.  v.  Lunny,  6  Cox,  446,  per  Monahan,  C.  J.  In  R.  v. 
Guttridge,  9  C.  &  P.  471,  where  a  prosecutrix  ibr  a  rape  was  absent  from  the 
trial,  Parke,  B.,  rejected  proof  of  her  complaint,  apparently  on  the  ground 
that  it  was  only  confirmatory  evidence. 

«  R.  V.  Megson,  9  C.  &  P.  420;  R.  v.  Clarke,  2  Stark.  R.  241;  1  East,  P.  C. 
444,  445;  1  Hale,  633;  R.  v.  Wood,  14  Cox,  46,  per  Bramwell,  L.  J. 

(3385) 


518  MUTUAL  demf:axour  of  husband  and  wife.        [part  ii. 

council  on  cross-examination.'  It  is  difficult  to  see  upon  wbat 
principle  this  rule  is  founded,  -where  the  complaint  is  offered  as 
confirmatory  evidence;  because,  if  witnesses  were  permitted  to 
relate  all  that  the  prosecutrix  had  said  in  making  her  original 
complaint,  such  evidence  would  furnish  the  best  test  of  the  accu- 
racy of  her  recollection,  when  she  was  sworn  to  describe  the  same 
circumstances  at  the  trial.^ 

§  582.  Again,  in  petitions  for  damages  on  the  ground  of  adul-  ?  520 
tery,^  if  it  be  material,  with  the  view  of  increasing  or  diminishing 
the  damages,  to  ascertain  upon  what  terms  the  husband  and  wife 
lived  together  before  the  seduction,  their  language  and  deportment 
towards  each  other,  their  correspondence  together,  and  their  con- 
versations "  and  correspondence  with  third  persons,  are  original 
evidence.*  But,  to  guard  against  the  abuse/  of  this  rule,  it  must 
be  proved  by  some  evidence  independent  of  the  date  appearing  on 
the  face  of  the  letters,''  that  they  were  written  by  the  wife  to  the 
husband  prior  to  any  suspicion  of  misconduct  on  her  part,  and 
when,  consequently,  no  grounds  existed  for  imputing  collusion.'* 
It  is  not,  however,  necessary,  in  the  absence  of  other  suspicious 
circumstances,  to  explain  why  the  husband  and  wife  were  living 
apart  at  the  time  when  the  letters  were  written,"  though  of  course 
it  is  expedient  that  such  explanation  should,  if  possible,  be  given. 


1  R.  V.  Walker,  2  M.  &  Rob.  212,  per  Parke,  B. ;  R.  v.  Osborne,  C.  &  Marsh. 
622;  R.  V.  Quiglej,  Ir.  Cir.  R.  677,  i)er  Torrens,  J.  But  see  R.  v.  Wood,  14 
Cox,  46,  per  Bramwell,  L.  J. 

2  See  R.  V.  .Walker,  2  M.  &  Rob.  212.  ^  See  20  &  21  V.,  c.  85,  ?  33. 
*  Trelawney  v.   Coleman,  2   Stark.  R.  191;  1    B.  &  A.   90,   S.  C;  Willis  v. 

Bernard,  8  Bing.  376;  Winter  v.  Wroot,  1  M.  &  Rob.  404,  per   Ld.  Lyndhunst; 
Gilchrist  v.  Bale,  8  Watts,  355. 

=  Trelawney  v.  Coleman,  2  Stark.  R.  193,  per  Holroyd,  J.;  Houlistou  v. 
Snnth,  2  C.  &  P.  24,  per  Best,  C.  J.  This  last  case  was  an  action  for  board 
and  lodging  supplied  to  a  wife,  while  living  separate  from  her  husband  in 
consequence  of  his  cruelty,  and  letters,  purporting  to  be  written  by  the  wife, 
were  tendered  by  the  husband  to  rebut  this  charge,  but  were  rejected  on  the 
ground  that  no  proof  was  given,  beyond  their  date,  of  the  time  when  they 
were  sent.  •   See  ante,  ?  170. 

«  Edwards  u.  Crock,  4  Esp.  39,  per  Ld.  Kenyon;  Trelawney  v.  Coleman, 
1  B.  &  A.  90;  Wilton  v.  Webster,  7  C.  &  P.  198,  per  Coleridge,  J.  See  Wynd- 
ham's  Divorce  Bill,  3  Macq.  Sc.  Ca.,  H.  of  L.  54. 

^  Trelawney  v.  Coleman,  2  Stark.  181;  1  B.  &  A.  90,  S.  C. 

(3386) 


CHAP.  VII.]      DECLARATIONS  WHEN  ADMISSIBLE  AS  RES  GESTAE.       519 

§  583.1  Certain  other  declarations  and  acts  are  admitted  as  §  521 
original  evidence,  being  distinguished  from  hearsay  by  their  con- 
nexion with  the  principal  fact  under  investigation.  The  affairs 
of  men  consist  of  a  complication  of  circumstances,  so  intimately 
interwoven  as  to  be  hardly  separable  from  each  other.  Each  owes 
its  birth  to  some  preceding  circumstance,  and  in, its  turn  becomes 
the  prolific  parent  of  others;  and  each,  during  its  existence,  has  its 
inseparable  attributes,  and  its  kindred  facts,  materially  affecting 
its  character,  and  essential  to  be  known,  in  order  to  a  right  under- 
standing of  its  nature.  These  surrounding  circumstances  may 
always  be  shown  to  the  jury  along  with  the  principal  fact,  pro- 
vided thdy  constitute  parts  of  what  are  termed  the  res  gestoe;  and 
whether  they  do  so  or  not  must  in  each  particular  case  be  deter- 
mined by  the  judge  in  the  exercise  of  his  sound  discretion,  accord- 
ing to  the  degree  of  relationship  which  they  bear  to  that  fact.  ^ 
Thus,  on  the  trial  of  Lord  George  Gordon  for  treason,  the  cry 'of 
the  mob,  who  accompanied  the  prisoner  on  his  enterprise,  was  re- 
ceived in  evidence,  as  forming  part  of  the  res  gestse,  and  showing 
the  character  of  the  principal  fact.  ^  So,  on  an  indictment  for  man- 
slaughter, a  statement,  made  by  the  deceased  immediately  after  he 
was  knocked  down,  as  to  how  the  accident  happened,  has  been  held 
admissible;'*  and  similar  evidence  has  been  received  by  Lord  Holt 
in  an  action  brought  by  a  husband  and  wife  against  a  defendant  for 
wounding  the  wife.  ^ 

§  584.   So,  also,  where  a  person  enters  upon  land  in  order  to  take    ?  521 
advantage  of  a  forfeiture,  to  foreclose  a  mortgage,  to  defeat  a  dis- 
seisin,^ or  the  like;  or  changes  his  actual  residence,  or  domicil,'  or 
is  upon  a  journey,  or  leaves  his  home,  or  returns  thither,  or  remains 

^  Gr.  Ev.  I  108,  in  great  part. 

*  Per  Parke,  J.,  in  Rawson  r.  Haigli,  2  Bing.  104  ;  Ridley  r.  Gj'de,  9  Bing. 
349,  352  ;  Pool  v.  Bridges,  4  Pick.  379  ;  Allen  v.  Duncan,  11  Pick.  309. 

3  21  How.  St.  Tr.  514,  529. 

*  R.  V.  Foster,  6  C.  &  P.  325,  per  Park  and  Patteson,  Js.,  and  Gurney,  B. 
This  case  has  been  questioned  by  Cockburn,  C.  J.,  in  R.  v.  Bedingfield,  14 
Cox,  341,  and  in  a  subsequent  pamphlet  on  the  subject  which  was  published 
by  his  lordship.  Sed  qu.  ;  and  see  the  author's  letter  to  the  Chief  Justice  in 
reply  to  the  pamphlet,  published  by  Messrs.  Maxwell  in  1880. 

*  Thompson  v.  Trevanion,  Skin.  402. 

«  Co.  Lit.  49  b,  245  b  ;  Robison  v.  Swett,  3  Greenl.  316  ;  3  Bl.  Com.  174, 
175.  '  Brodie  v.  Brodie,  2  Swab.  &  Trist.  259. 

(3387) 


520  DOCTRINE  OF  RES  GEST^.  [PAET  ir. 

abroad,  or  secretes  himself ;  or,  in  fine,  does,  or  suffers,  any  other 
act  material  to  be  understood  ;'  his  declarations  made  at  the  time 
of  the  transaction,  and  expressive  of  its  character,  motive,  or  object, 
are  regarded  as  "verbal  acts,  indicating  a  present  purpose  and  in- 
tention," and  are  therefore  admitted  in  proof,  like  any  other  material 
facts/  So,  upon  an  inquiry  as  to  the  state  of  mind,  sentiments, 
intentions,  or  opinions  of  a  person  at  any  particular  period,  his  con- 
temporaneous declarations  are  admissible  as  parts  of  the  res  gestae,^ 
though  evidence  of  this  nature  is  seldom  entitled  to  much  weight.* 
Again,  in  a  suit  for  enticing  away  a  servant,  his  statement  at  the 
time  of  leaving  his  master  will  be. received,  as  tending  to  show  the 
motive  of  his  departure  ;^  and  where  an  action  of  trover  was  brought 
against  the  assignees  of  a  bankrupt,  and  it  appeared  that  the  plaintiff, 
at  the  recommendation  of  the  bankrupt,  had  sent  some  goods  to  a 
dyer,  and  had  told  him  that  the  bankrupt  would  call  and  give  direc- 
tions about  them,  it  was  held  that  these  directions  should  have  been 
submitted  to  the  jury  on  behalf  of  the  assignees,  as  affording  some 
evidence  of  a  dealing  with  the  goods,  if  not  of  the  consent  of  the 
true  owner  to  such  dealing.^ 

§  585.   So    extensive  is    this    rule    in    its    operation,  that    to  a    I  522 
certain    degree    it    even    overrides  the  general    provision  of    law, 
which  precludes  a  party's    declarations    from    being  evidence  for 

>  Parrott  v.  Watts,  47  L.  J.,  C.  P.  79. 

*  Bateman  v.  Bailey,  5  T.  R.  512,  and  the  observations  of  Mr.  Evans  npon 
it,  in  2  Poth.,  Obi.,  App.  No.  xvi.,  |  11  ;  Rawson  r.  Haigh,  2  Bing.  99  ;  9 
Moore,  217,  S.  C. ;  Vacher  v.  Cocks,  M.  &  M.  353,  per  Ld.  Tenterden  ;  Smith 
V.  Cramer,  1  Bing.  N.  C.  585  ;  Doe  v.  Arkwright,  5  C.  &  P.  575,  per  Parke,  B. ; 
Lord  V.  Colvin,  4  Drew.  366  ;  Gorham  v.  Canton,  5  Greenl.  266 ;  Thorndike 
V.  City  of  Boston,  1  Mete.  242;  Lund  v.  Tyngsborough,  9  Cush.  37,  43.  In 
R.  V.  Edwards,  12  Cox,  230,  Quain,  J.,  carried  the  law  to  its  extreme  limit,  for, 
on  a  trial  of  wife  murder,  he  allowed  a  witness  to  state  what  the  wife  had  said 
about  her  husband  a  week  before  her  death,  on  bringing  to  the  cottage  of  the 
witness  an  axe  and  carving  knife  to  be  taken  care  of     Sed  qu.  as  to  this  case. 

=*  Barthelemy  v.  The  People,  &c.,  2  Hill,  N.  Y.  Rep.  248,  257. 

■*  Hodgson  V.  De  Beanchesne,  12  Moo.  P.  C.  R.  325,  per  Dr.  Lushington, 
cited  with  approbation  by  Jessel,  M.  R.,  in  Doucet  v.  Geoghegan,  L.  R.,  9 
Ch.  D.  455;  Haldane  w.  Eckford,  L.  R.,  8  Eq.  631,  per  James,  Ld.  J.;  and 
Doucet  V.  Geoghegan   L.  R.,  9  Ch.  D.  457,  per  id. 

^  Hadley  v.  Carter,  8  New  Hamps.  40.  See,  however,  R.  r.  Wainwright,  13 
Cox,  171,  per  Cockburn,  C.  J.,  and  R.  v.  Pook,  id.  172,  note,  per  Bovill,  C.  J., 
et  qu.  ®  Sharp  v.  Newsholme,  5  Bing.  N.  C.  713. 

(3388) 


CHAP.  VII.]   WHAT  DECLARATIONS  FORM  PART  OF  THE  RES  GEST.E.   521 

himself;  and,  therefore,  in  an  action  for  falsely  representing  the 
solvency  of  a  stranger,  whereby  the  plaintiffs  weie  induced  to  trust 
him  with  goods,  statements  by  them  at  the  time  when  the  goods 
were  supplied,  that  they  trusted  him  in  consequence  of  the  repre- 
sentation, were  received  as  evidence  on  their  behalf;'  and  where 
a  bailee  was  sued  for  loss  by  negligence,  his  declarations,  con- 
temporaneous with  the  loss,  have  been  held  in  America  to  be 
admissible  in  his  favour,  as  tending  to  show  the  nature  of  the 
loss."  In  Lord  George  Gordon's  trial,  his  counsel  strove  to  carry 
this  doctrine  one  step  further;  and  witnesses  having  been  called 
by  the  Crown  to  speak  to  a  meeting  that  was  held  on  the  29th  of 
May,  and  to  what  fell  from  the  defendant  on  that  occasion,  one  of 
them  was  asked  on  cross-examination,  what  Lord  George  had  said 
on  the  preceding  night  relative  to  the  meeting,  the  object  being  to 
show  thereby  that  his  motives  in  convening  and  attending  it  were 
not  criminal.  The  court,  however,  held  that  though  the  witness 
might  be  questioned  as  to  the  whole  conversation  that  passed  at  the 
meeting,  the  private  declaration  of  the  defendant,  whether  subse- 
quent or  precedent  to  that  meeting,  could  not  be  given  in  evidence 
as  explanatory  of  his  intentions  or  conduct.^ 

§  580.  In  the  practical  application  of  this  rule,  two  points  de-  ?  ^-^ 
serve  especial  attention.  The  first  is,  that  declarations, — though 
admissible  as  evidence  of  the  declarant's  knowledge  or  belief  of 
the  facts  to  which  they  relate,  and  of  his  intentions  respecting 
them, — are  no  proof  of  the  facts  themselves;  and,  therefore,  if  it 
be  necessary  to  show  the  existence  of  such  facts,  proof  aliunde 
must  be  laid  before  the  jury;  and  it  seems  that,  in  strict  practice, 
this  proof  should  be  given  in  the  first  instance,  before  the  court 
be  called  upon  to  receive  evidence  of  the  declarations.  For 
example,  the  fact  of  insolvency  must  be  established,  before  state- 
ments of  the  insolvent  will  be  admitted  to  show  that  he  was  aware 
of   his  embarrassed    circumstances.*     Sometimes,    under   the    law 


^  Fellowcs  V.  Williamson,   M.   &  M.   306,   per  Ld.   Tenterden.     See,    also, 
Milne  v.  Leisler,  31  L.  J.,  Ex.  257;  7  H.  &  N.  786,  S.  C. 

^  Story,    Bail.   ^   339;  citing   Tomkins   v.    Saltmarsh,    14   Serg.    &  R,  275; 
Beardslee  v.  Richardson,  11  Wend.  25.  ^  21  How.  St.  Tr.  542,  543. 

*  Thomas  v.  Connell,  4  M.  &  W.  267,  269,  270;  Craven  v.  Halliley,  cited  id. 
270,  per  Parke,  B. ;  Vacher  v.  Cocks,  M.  &  M.  353. 

(3389) 


522     WHAT  DECLARATIONS  FORM  PART  OF  THE  RES  GEST/E.      [pART  II. 

relating  to  bankrupts,  the  truth  of  the  facts  need  not  be  proved, 
but  it  will  suffice  to  show  the  bankrupt's  belief.  Thus,  if  the  act 
of  bankruptcy  relied  upon  be  an  absenting  with  intent  to  delay 
creditors,  a  declaration  by  the  bankiapt  that  he  left  home  to  avoid  ' 
a  writ  will  be  admissible,  though  no  evidence  be  given  that  any 
writ  was  actually  out  against  him,  because,  in  order  to  constitute 
this  act  of  bankruptcy,  neither  writ  nor  pressure  is  in  fact  neces- 
sary.' Still,  even  in  this  case,  the  departure  from  home  is  a  sub- 
stantive act,  which  must  be  proved  by  evidence  independent  of  the 
declaration;  and  being  an  act  in  itself  equivocal,  the  statement  of 
the  bankrupt,  made  during  its  continuance,  is  admissible  to  show 
the  intention  with  which  it  was  done.^ 

§  587.  The  second  point  deserving  consideration  is,  that,  al-  §  524 
though  acts,  by  whomsoever  done,  are  res  gestae,  if  relevant  to 
the  matter  in  issue,^  yet  if  they  be  ivrelevant,  declarations  quali- 
fying or  explaining  them  will,  together  with  the  acts  themselves, 
be  rejected.  Thus,  in  an  action  against  a  town  for  injuries  sus- 
tained through  a  defect  in  a  highway,  the  declarations  of  a  surgeon, 
since  deceased,  which  were  made  at  the  time  of  his  examining 
the  plaintiff's  wounds,  have  been  rejected  as  evidence  of  the 
nature  and  extent  of  the  injuries;  for,  in  such  a  case  as  this,  the 
fact  of  the  surgical  es:amination  would  itself  have  been  immaterial, 
and  the  declarations  were  no  more  than  the  mere  hearsay  ex- 
pression of  a  professional  opinion.*  On  the  non  attention  to  this 
rule  was  founded  one  of  the  main  fallacies  in  Wright  v.  Doe  d. 
Tatham.  There,  on  an  issue  respecting  the  sanity  of  a  testator, 
letters  written  to  him,  and  found  among  his  papers  after  his  death, 
were  oflfered  in  evidence;  and  it  was  contended  that  the  writing 
of  a  letter  was  an  act  done>  that  the  contents  of  the  letter  were 
declarations  accompanying  that  act,  and  that  an  opinion,  though 
not  evidence  per  se,  was  yet  evidence  when  embodied  in  an  act. 
To    this  it  was  answered    by   Mr.    Justice    Coltman,    that,    if    the 


1  Rouch  V.  Gt.  West.  Ry.  Co.,  1  Q.  B.  51,  G2,  63;  4  P.  &  D.  686,  S.  C. ;  New- 
man V.  Stretch,  M.  &  M.  338,  per  Parke,  J.;  Ex  parte  Bamford,  15  Ves,  449; 
Robson  V.  Rolls,  9  Bing.  648. 

^  Rouch  V.  Gt.  West.  Ry.  Co.,  1  Q.  B.  63. 

3  Wright  V.  Doe  d.  Tatham,  7  A.  &  E.  355,  per  Parke,  B. 

*  Lund  V.  Tyngsborough,  9  Cush.  37. 

(3390) 


CHAP.  VII.]  WHAT  DECLARATIONS  FORM  PART  OF  THE  RES  GEST^.    523 

letter  was  admissible  on  this  ground,  it  must  be  either  because 
the  act  done  is  evidence  by  itself,  or  because  the  opinion  was 
evidence.  Where  an  act  done  is  evidence  per  se,  a  declaration 
accompanying  that  act  may  well  be  evidence,  if  it  reflects  light 
upon  or  qualities  the  act.  But  where  the  act  is  in  its  own  nature 
irrelevant  to  the  issue,  and  where  the  declaration  per  se  cannot 
be  received,  no  case  has  yet  established  that  the  union  of  the  two 
will  render  them  admissible.^ 


§  588.  In  all  these  cases  the  principal  points  of  attention  are,  ?  525 
whether  the  circumstances  and  declarations  offered  in  proof  were 
so  connected  with  tlie  main  fact  under  consideration,  as  to  illus- 
trate its  character,  to  further  its  object,  or  to  form,  in  conjunction 
with  it,  one  continuous  transaction.  It  was  at  one  time  thought 
necessary  that  they  should  be  contemporaneous  with  it;"  but  this 
doctrine  has  of  late  years  been  rejected,  and  it  seems  now  to  be 
decided,  that,  although  concurrence  of  time  must  always  be  con- 
sidered as  material  evidence  to  show  the  connexion,  it  is  by  no 
means  essential."'  Thus,  what  a  bankrupt  said  immediately  on 
his  return  home,  as  to  the  place  where  he  had  been,  and  his 
motive  in  going,  has  been  held  admissible;*  and  in  Ridley  v. 
Gyde,''  where  the  disputed  act  of  bankruptcy  was  a  fraudulent 
transfer,  a  declaration  by  the  bankrupt,  in  which  he  gave  a  false 
account  of  the  matter,  was  received  in  evidence,  though  made 
nearly  a  month  after  the  transfer  had  taken  place.  In  that  casej 
the  creditor,  with  whom  the  conversation  was  held,  had  pressed 
for  payment  of  his  debt  immediately  before  the  transfer,  and  had 
been    promised  security   for  the    following    day;    but,  instead  of 

1  Wright  V.  Doe  d.  Tatham,  7  A.  &  E.  361,  ante,  ^  572. 

^  This  seem.'?  still  to  be  the  law  in  America.  Thus,  in  Enos  v.  Tuttle,  3 
Conn.  R.  250,  Hosmer,  C.  J.,  observed,  that  declarations,  to  become  part  of 
the  res  gestae,  "  must  have  been  made  ai  the  time  of  the  act  done,  which  they  are 
supposed  to  characterise,  and  have  been  well  calculated  to  unfold  the  nature 
and  quality  of  the  facts  they  were  intended  to  explain,  and  so  to  harmonise 
with  them,  as  obviously  to  constitute  one  transaction." 

^  Rouch  V.  Gt.  West.  Ry.  Co.,  1  Q.  B.  60,  61;  4  P.  &  D.  686,  S.  C. 

*  Bateman  v.  Bailey,  5  T.  R.  512;  recognised  by  the  Court  in  Rouch  v.  Gt. 
West.  Ry.  Co.,  1  Q.  B.  61. 

*  9  Bing.  349;  2  M.  &  Sc.  448,  S.  C.  In  this  case,  Gaselee,  J.,  differed  from 
the  rest  of  the  court,  but  the  opinion  of  the  majority  was  coutirmed  and 
recognised  in  Rouch  v.  Gt.  West.  Ry.  Co.,  1  Q.  B.  61. 

(3391) 


524  NARRATIVES  OF  PAST  EVENTS  INADMISSIBLE,  [PAET  II. 

keeping  his  word,  the  bankrupt  had  transferred  his  property  to  a 
relative,  and  had  absconded.  Under  these  circumstances  the 
coiu't,  considering  that  the  statement  was  a  mere  resumption  of 
the  conversation  which  was  had  at  the  first  interview,  adopted  the 
rule  which  Mr.  Justice  Park  had  laid  down  in  Rawson  v.  Haigh,' 
"  that  it  is  impossible  to  tie  down  to  time  the  rule  as  to  the 
declarations,"  and  that,  if  connecting  circumstances  exist,  a  decla- 
ration may,  even  at  a  month's  interval,  form  part  of  the  whole 
res  gestae.  So,  where  a  trader  had  absented  himself  from  home 
during  the  latter  half  of  February  and  the  commencement  of 
March,  two  letters  written  by  him  on  the  IGth  of  January,  in 
which  he  had  asked  for  time  on  some  bills  of  exchange  payable  in 
February,  were  admitted  in  evidence,  as  tending  to  throw  light  on 
the  cause  of  his  absence.^ 


§  589.^  Still,  an  act  cannot  be  varied,  qualified,  or  explained,  §  526 
either  by  a  declaration  which  amounts  to  no  more  than  a  mere 
narrative  of  a  j^cist  occurrence,  or  by  an  isolated  conversation  held, 
or  an  isolated  act  done,  at  a  later  period.^  Thus,  the  schedule  of 
an  insolvent,  delivered  four  months  after  his  execution  of  a  deed 
of  assignment,  has  been  rejected,  when  tendered  by  the  assignees 
as  evidence  that  the  indenture  was  executed  with  intent  to  peti- 
tion;^ and  where  a  creditor  called  upon  a  bankrupt  in  the  morn- 
ing, and  being  told  that  he  was  out,  paid  a  second  visit  in  the 
evening  of  the  same  day,  when  the  bankrupt  made  a  statement 
respecting  his  absence  in  the  morning,  Mr.  Baron  Parke  held 
that  this  statement  was  inadmissible,  for  the  purpose  of  showing 
that  the  bankrupt  had  intentionally  denied  himself  to  his  creditors, 
it  being  too  remote  in  point  of  time  from  the  absence  which  it 
purposed  to  explain.'^  This  last  case  can  scarcely  be  reconciled 
with  Bateman  v.  Bailey,^  and  possibly  it  would  now  be  considered 
as  laying  down  the  rule  somewhat  too  strictly;  but  whatever  may 


»  2  Bing.  104;  9  Moore,  217.    S.  C. 

2  Smith  V.  Cramer,  1  Bing.  N.  C.  585;  1  Scott,  541,  S.  C. 

3  Gr.  Ev.  ?  110,  slightly. 

♦  Hyde  v.  Palmer,  3  B.  &  S.  657;  32  L.  J.,  Q.  B.  126,  S.  C. 

*  Peacock  v.  Harris,  5  A.  &  E.  449,  454. 
fi  Lees  V.  Marton,  1  M.  &  Rob.  210. 

'  5  T.  K.  512,  cited  ante,  ?  588,  n.  *. 
(3392) 


CHAP.  VII.]      ACTS    AND    DECLARATIONS    OF    CONSPIRATORS.  525 

be  the  precise  limits  of  the  rule, — if  any  can  be  assigned, — it  is 
perfectly  clear  that  declarations  made,  or  letters  written,  during 
absence  from  home,  explanatory  of  the  motive  of  departure,  are 
admissible  as  original  evidence,  since  the  departure  and  absence 
are  very  properly  regarded  as  one  continuing  act.' 

§  590.'-'  The  same  principles  apply  to  the  acts  and  declarations  I  527 
of  one  of  a  company  of  conspirators,  in  regard  to  the  common 
design  as  affecting  his  fellows.  Here,  a  foundation  should  first  be 
laid  by  proof,  sufficient,  in  the  opinion  of  the  judge,  to  establish 
prima  facie  the  fact  of  conspiracy  between  the  parties,  or,  at  least, 
proper  to  be  laid  before  the  jury,  as  tending  to  establish  such  fact. 
The  connexion  of  the  individuals  in  the  unlawful  enterprise  being 
thus  shown,  every  act  and  declaration  of  each  member  of  the  con- 
federacy, in  pursuance  of  the  original  concerted  plan,  and  with 
reference  to  the  common  object,  is,  in  contemplation  of  law,  the  act 
and  declaration  of  them  all ;  and  is,  therefore,  original  evidence 
against  each  of  them.^ 

§  591.  Sometimes,  for  the  sake  of  convenience,  the  acts  or  I  528 
declarations  of  one  are  admitted  in  evidence  before  sufficient  proof 
is  given  of  the  conspiracy  ;  the  prosecutor  undertaking  to  furnish 
such  proof  in  a  subsequent  stage  of  the  cause.  But  this  mode  of 
proceeding  rests  in  the  discretion  of  the  judge,  and  in  seditious 
or  other  general  conspiracies  is  seldom  permitted,  except  under 
particular  and  urgent  circumstances ;  for,  otherwise,  the  jury 
might  be  misled  to  infer  the  fact  itself  of  the  conspiracy  from  the 

1  Rouch  V.  Gt.  West.  Ry.  Co.,  1  Q.  B.  51,  61  ;  4  P.  eSc  D.  686,  S.  C;  Rawson 
V.  Haigh,  2  Bing.  99,  104  ;  9  Moore,  217,  S.  C. 

■■'  Gr.  Ev.  I  111,  in  great  part 

3  R.  V.  Stone,  6  T.  R.  528,  529  ;  25  How.  St.  Tr.  1267,  1277,  1313,  S.  C.  ; 
American  Fur  Co.  v.  IT.  S.,  2  Pet.  358,  365;  Crowninshield  s  case,  10  Pick. 
497  ;  U.  S.  V.  Gooding,  12  Wheat.  469  ;  Com.  v.  Eberle,  3  Serg.  &  R.  9.  In 
R.  V.  M'Kenna,  Ir.  Cir.  Rep.  461,  Pennefather,  C.  J.,  thus  laid  down  the 
law  : — "It  is  necessary  to  prove  the  existence  of  a  conspiracy,  and  to  connect 
the  prisoner  with  it  in  the  first  instance,  where  you  seek  to  give  in  evidence 
against  him  in  the  declaration  of  a  co-conspirator  ;  and  having  done  so,  you  are 
then  at  liberty  to  give  in  evidence  against  the  prisoner  acts  done  by  any  of 
the  parties,  whom  you  have  connected  with  the  conspiracy ;  but  when  a 
party's  own  declarations  are  to  be  given  in  evidence,  such  preliminary  proof 
is  not  requisite,  and  you  may,  as  in  any  other  offence,  prove  the  whole  case 
against  him  by  his  own  admissions." 

(3393) 


526  ACTS   AND   DECLARATIONS   OF   CONSIPRATORS.        [PART   II. 

declarations  of  strangers.  Still,  as  a  conspiracy  need  not  be  estab- 
lished by  proof  which  actually  brings  the  parties  together,  but  may 
be  shown,  like  any  other  fact,  by  circumstantial  evidence,  the  de- 
tached acts  of  the  different  persons  accused,  including  their  written 
correspondence,  entries  made  by  them,  and  other  documents  in 
their  possession  relative  to  the  main  design,  will  sometimes  from 
necessity  be  admitted,  as  steps  to  establish  the  conspiracy  itself.  On 
this  subject  it  is  difficult  to  establish  a  general  inflexible  rule,  but 
each  case  must,  in  some  measure,  be  governed  by  its  own  peculiar 
circumstances.' 


§  592.^  It  makes  no  difference  at  what  time  the  party  accused  ^  529 
is  proved  to  have  entered  into  the  conspiracy  or  combination  ; 
because  every  one,  who  agrees  with  others  to  effect  a  common 
illegal  purpose,  is  generally  considered  in  law  as  a  party  to  every 
act,  which  either  had  before  been  done,  or  may  afterwards  be 
done,  by  the  confederates,  in  furtherance  of  the  common  design.^ 
One  or  two  individuals  may  have  concocted  the  scheme,  but  all 
who  afterwards  join  in  carrying  it  out  are  equally  guilty  with  the 
originators  ;  *  at  least,  if  any  evidence  be  forthcoming  from  which 
their  adoption  of  the  previous  acts  of  the  association  can  reason- 
ably be  inferred.'^  Neither  does  it  matter  whether  the  acts  were 
done,  or  the  declaration  made,  in  the  jyresence  or  in  the  absence  oi 
the  accused,  but  everything  said  or  done  by  any  one  of  the  con- 
spirators or  accomplices  in  furtherance  of  the  common  object,  is 
evidence  against  each  and  all  of  the  parties  concerned,  whether  they 
were  present  or  absent,  and  whether  or  not  they  were  individually 
aware  of  what  was  taking  place.''  Thus,  the  cries  of  a  mob,  with 
whose  proceedings  the  prisoner  is  connected,  though  made  in  his 
absence,  are  admissible  against  him,  as  explanatory  of  the  objects 
which    he,   in  common  with    the  multitude,  had   in  view  ; '  and 


I  See  R.  I'.  Blake,  G  Q.  B.  126  ,  Ford  r.  Elliot,  4  Ex.  R.  78. 

^  Gr.  Ev.  ^  111,  in  part. 

^  R.  V.  Watson,  32  How   St.  Tr.  7,  per  Baj-ley,  J. 

*  R.  r.  Murphy,  8  C.  «&  P.  311,  per  Coleridge,  J. 

*  R.  V.  O'Connell,  Arm.  &  T.  813,  814,  per  Pennefather,  C.  J. 
«  R.  V.  Brandreth.  32  How.  St.  Tr.  857.  858. 

^  R.  V.  Ld.  Geo.  Gordon,  21  How.  St.  Tr.  535,  536  ;   cited  by  Buller,  J.,  in 
R.  V.  Hardy,  24  How.  St.  Tr.  452.     See  R.  v.  Petcherini,  7  Cox,  79. 

(3394) 


CHAP.  VII.]  ACTS  AND  DECLARATIONS  OF  CONSPIRATORS.  527 

expressions  used  by  persons  going  to  a  meeting  convened  by  the 
defendant,  are  receivable  on  similar  grounds.'  In  O'Connell's  case, 
where  the  defendants  were  charged  with  summoning  monster  meet- 
ings for  illegal  purposes,  papers  publicly  sold  at  these  meetings, 
and  supporting  the  views  of  the  defendants,  were  received  in 
evidence,  though  no  proof  was  given  connecting  the  defendants 
with  the  persons  selling  the  papers." 

§  593.  Care,  however,  must  be  taken  to  distinguish  between  ?  530 
declarations,  which  are  either  acts  in  themselves  purporting  to 
advance  the  o])jects  of  the  criminal  enterprise,  or  which  accom- 
pany and  explain  such  acts,  and  those  statements,  whether  written 
or  oral,  which,  although  made  during  the  continuance  of  the  plot, 
are  in  fact  a  mere  narrative  of  the  measures  that  have  already 
been  taken.  These  last  statements  are,  as  before  explained,^ 
inadmissible.  The  distinction  here  referred  to  may  be  well  illus- 
trated by  the  case  of  Hardy,  who  was  prosecuted  for  high  treason, 
There,  a  letter,  written  by  a  co-conspirator  to  a  private  friend 
unconnected  with  the  plot,  which  gave  an  account  of  the  pro- 
ceedings of  a  society  to  which  the  wi'iter  and  the  defendant  were 
proved  to  have  belonged,  and  which  enclosed  several  seditious 
songs  stated  to  have  been  composed  by  the  writer,  and  sung  by 
him  at  a  meeting  of  the  society,  was  rejected  on  the  ground  that 
it  was  not  a  transaction  in  support  of  the  conspiracy,  but  merely 
a  relation  of  the  part  which  the  writer  had  taken  in  the  plot,  and, 
as  such,  only  admissible  against  himself.*  A  second  letter  was 
then  offered  in  evidence,  which  was  written  by  another  co-conspi- 
rator to  a  delegate  in  the  countrj'-,  describing  the  events  that  had 
occurred  in  London,  and  encouraging  him  thereby  to  proceed  in 
the  criminal  business  in  which  he  was  engaged  ;  and  as  this  letter 
was  considered  by  the   court  as  an  act  done  in  furtherance  of  the 


1  R.  V.  Hunt,  3  B.  &  A.  574  ;  Redford  v.  Birley,  3  Stark.  R.  85—88. 

2  Arm.  &  T.  275—277. 
'  Ante,  I  589. 

*  24  How.  St.  Tr.  451—453,  per  Eyre.  C.  J.,  Macdonald,  C.  B.,  and  Hotham, 
B.;  Buller  and  Grose,  Js.,  diss.  In  R.  v.  Watson,  32  How.  St.  Tr.  352,  Ld. 
Ellenborough  observed  that  there  was  great  weight  in  the  arguments  of 
Buller  and  Grose,  Js. 

(3395) 


52S  NARRATIVES,  DESCRIPTIONS,  AND  CONFESSIONS  INADMISS.  [PART  II. 

plot,  it  was  received  against  the  defendant,  though  no  evidence 
was  given  to  show  that  it  had  ever  reached  the  person  for  whose 
perusal  it  was  intended.' 


§  594.  The  same  distinction  was  drawn  by  the  court  in  the  case  ?  531 
of  R.  V.  Blake,"  where  the  accused  was  indicted  for  conspiring  with 
one  Tye  and  others  to  defraud  her  Majesty  of  certain  duties  of 
customs.  It  appeared  at  the  trial  that  Blake  was  a  landing  waiter, 
and  Tye  an  agent  for  importers,  at  the  custom-house  ;  and  it  was 
the  duty  of  these  persons  respectively  to  make  entries  of  the  con- 
tents of  cases  imported,  so  as  to  be  a  check  upon  each  other.  It 
was  shown  that  on  thirteen  occasions  they  had  made  false  entries, 
in  which  they  stated  that  certain  packages  contained  smaller 
quantities  than  was  really  the  fact.  It  was  then  proposed  to  put 
in  evidence  Tye's  day-book,  which  contained  entries  in  his  hand- 
writing relative  to  the  thirteen  transactions,  and  showed  the 
amount  of  duty  actually  paid  by  him.  This  book  was  found  in 
Tye's  counting-house,  and  the  court  held  that  it  was  clearly 
admissible,  as  containing  entries  made  in  furtherance  of  the  con- 
spiracy. Tye's  cheque  book  was  next  produced,  for  the  purpose  of 
showing  by  the  counterfoil  that  Blake  had  received  from  him  part 
of  the  moneys  of  which  the  customs  had  been  defrauded  in  these 
transactions  ;  but  the  court  rejected  this  evidence,  on  the  ground 
that  it  was*  no  act  done  in  pursuance  of  the  plot,  but  was  a  mere 
statement  as  to  the  mode  of  distributing  the  plunder,  after  the 
fraud  had  been  completed.  Again,  a  conversation  between  two 
men,  apparently  returning  from  a  meeting,  which  had  been  held 
within  an  hour  before,  and  about  half  a  mile  distant  from  the  spot 
where  the  men  were,  has  been  rejected,  though  offered  as  evidence, 
not  only  of  the  general  nature  of  the  meeting,  but  of  the  effect  that 
was  likely  to  be  produced  by  the  language  there  employed.^  In 
fine,  the  declarations  of  a  conspirator  or  accomplice  are  receivable 
against  his  fellows,  only  when  they  are  in  themselves  acts,  or  when 


1  24  How.  St.  Tr.  473—477,   per  Macdonald,  C.  B.,  Hotham,  B.,  Buller  and 
Grose,  Js. ;  Eyre,  C.  J.,  dubit. 

2  6  Q.  B.  126. 

^  R.  V.  O'Connell,  Arm.  &  T.  257—259.     See,  also,  R.  v.  Murphy,  8  C.  &  P. 
305  ;  R.  V.  Watson,  2  Stark.  R.  141  ;  32  How.  St.  Tr.  349,  351,  S.  C. 

(3396) 


CHAP.  VII.]         PAPERS  FOUND — UNPUBLISHED  WRITINGS,  529 

they  accompany  and  explain  acts,  for  which  the  others  are  respon- 
sible; but  not  when  they  are  in  the  nature  of  narratives,  descrip- 
tions, or  subsequent  confessions. 

§  595.  On  a  somewhat  similar  principle,  papers  found,  after  the  §  532 
apprehension  of  a  prisoner,  on  the  person  or  at  the  lodgings  of  a 
co-conspirator,  will  be  admissible  or  not  against  the  accused,  accord- 
ing as  there  is  or  is  not  evidence  to  show  that  they  existed  before 
he  was  taken  into  custody.  If  no  such  evidence  can  be  given,  the 
papers  will  be  rejected,  as  the  prisoner  cannot  be  responsible  for  acts 
or  writings,  which  possibly  may  not  have  existed  until  after  the 
common  enterprise  was,  so  far  as  he  was  concerned,  at  an  end ; ' 
but  if  the  previous  existence  of  the  papers  be  established,  either 
by  direct  proof,  or  by  strong  presumptive  evidence,  the  objection  to 
their  admissibility  can  no  longer  prevail.^ 

§  598.  The  question  how  far  unpublished  writings  upon  abstract  I  533 
subjects,  which,  though  of  a  kindred  nature  with  the  crime  charged, 
have  no  direct  relation  to  it,  are  admissible  in  evidence,  may 
admit  of  some  doubt.  In  the  case  of  Algernon  Sidney,  a  treatise 
containing  speculative  republican  doctrines,  which  not  only  was 
unpublished  and  unconnected  with  the  treasonable  practices  of 
which  he  was  accused,  but  which  appeared  to  have  been  composed 
several  years  before  the  trial,  was,  under  the  auspices  of  Judge 
JefFeries,  admitted  in  evidence;^  but  subsequent  times  have  re- 
garded this  trial  as  a  judicial  murder,  and  such  proof  would  as- 
suredly be  rejected  at  the  present  day.  If,  indeed,  the  papers 
were  closely  connected  with  the  nature  and  object  of  the  alleged 
crime,  they  would  probably,  though  unpublished,  be  considered  in 
strict  law  admissible,  without  any  positive  proof  that  they  were 
intended  to  be  used  in  furtherance  of  the    design;  and  if  such 


'  R.  r.  Hardy,  24  How.  St.  Tr.  718,  731. 

^  R.  V.  Watsou,  32  id.  337—342,  347—350;  2  Stark.  R.  140,  141,  S.  C.  See 
R.  I'.  M'Cafferty,  I.  R.,  1  C.  L.  363.  There,  acts  of  insurrection  committed 
after  the  arrest  of  the  prisoner,  but  in  consequence  of  instructions  given  by 
him  before  he  was  apprehended,  were  held  to  be  admissible  in  evidence  on  a 
charge  of  conspiracy  to  raise  rebellion. 

3  9  How.  St.  Tr.  854—859;  observed  upon  by  Abbott,  J.,  in  R.  v.  Watson, 
2  Stark.  R.  147;  and  in  Fost.  C.  L.  198. 

(3397) 


530  DECLAKATIONS  OF  CO-TRESI'ASSERS.  [PART  II. 

proof  could  be  given,  they  would  doubtless  be  received.^  "Where 
conversations  of  co  conspirators  or  accomplices  are  proved,  the 
effect  of  the  evidence  will  of  course  depend  upon  the  surrounding 
circumstances,  such  as  the  fact  and  degree  of  the  prisoner's  atten- 
tion to  what  was  said,  and  his  approval  or  disapproval  thereof." 


§  597.  The  declarations  of  co-trespassers  in  civil  actions  are  g  534 
governed  by  the  same  rules;  that  is,  if  several  are  jointly  sued, 
the  declarations  of  each,  which  constitute  parts  of  the  res  gestae, 
are  admissible  against  all;  ^  while  those  which  amount  to  mere 
admissions,  or  narratives  of  past  events,  can  only  be  received 
against  the  party  making  them.*  In  one  case,^  which  was  an 
action  for  false  imprisonment,  Mr.  Baron  Garrow  admitted  the 
declarations  of  co-defendant,  showing  personal  malice,  as  evidence 
against  the  other  defendants,  though  made  in  their  absence,  and 
several  weeks  after  the  act  complained  of;  but  the  attention  of  the 
learned  judge  does  not  appear  to  have  been  drawn  to  the  time  when 
the  words  were  spoken,  and  probably  this  case  would  not  now  be 
regarded  as  a  safe  precedent.  "Where  no  common  object  or  motive 
is  imputed,  as  in  actions  for  negligence,  the  declaration  of  each 
defendant  is  admissible  against  himself  alone. *^ 

§  598.'  This  doctrine  extends  to  all  cases  of  jjariners/i«p.  When-  |  535 
ever  any  number  of  persons  are  associated  together  in  the  joint 
prosecution  of  a  common  enterprise  or  design,  as  in  commercial 
partnerships,  and  similar  cases,  the  act  or  declaration  of  each 
member,  in  furtherance  of  the  common  object  of  the  association, 
is  the  act  or  declaration  of  all.  By  the  very  act  of  association  each 
partner  is    constituted    the  agent  of  the  others,  for  all  purposes 


'  R.  V.  Watson,  35  How.  St.  Tr.  354—361;  2  Stark.  R.  141,  S.  C. 

2  R.  V.  Hardy,  24  id.  703,  per  Eyre,  C.  J. 

'  See  R.  V.  Hard  wick,  11  East,  585,  per  Ld.  Ellenborough;  Powell  v. 
Hodgetts,  2  C.  &  P.  432,  per  Garrow,  B.;  North  v.  Miles,  1  Camp.  389,  per 
Ld.  Ellenborough;  Bowsher  v.  Calley,  id.  391,  n.  per  id.;  1  Ph.  Ev.  204. 

*  Daniels  v.  Potter,  M.  &  M.  501,  perTindal,  C.  J. 

5  Wright  V.  Court,  2  C.  &  P.  232. 

«  Daniels  v.  Potter,  M.  &  M.  503,  per  Tindal,  C.  J. 

^  Gr.  Ev.  ?  112,  in  part. 

(3398) 


CHAP.  VII.]  DECLARATIONS  OF  PARTNERS.  531 

within  the  scope  of  the  partnership  concern;'  unless,  under  the 
special  circumstances  of  the  case,  an  intention  can  be  inferred  by 
the  jury,  that  a  particular  act  should  not  be  binding  without  the 
direct  concurrence  of  each  individual  partner.'^  While  the  firm 
thus  created  exists,  it  speaks  and  acts  only  by  the  several  members; 
but  when  that  existence  ceases  by  dissolution,  the  subsequent  acts 
of  the  individual  members  are  binding  on  themselves  alone,'  except 
so  far  as  may  have  been  otherwise  agreed  upon  by  the  articles  of 
association  or  dissolution,*  or  as  the  acts  relate  to  the  previous 
business  of  the  firm.^  This  last  exception  may  be  illustrated  by 
the  case  of  Pritchard  v.  Draper,"^  where  Lord  Brougham  held,  that 
the  admission  of  one  partner,  as  to  the  payment,  subsequently  to 
a  dissolution,  of  a  debt  due  to  the  firm,  was  admissible  against  the 
other  partners. 

§  599.  In  the  case  just  cited,  the  party  making  the  admission  §  536 
was  at  the  time,  so  far  as  the  debt  in  question  was  concerned, 
jointly  interested  with  the  parties  against  whom  his  statement  was 
tendered  in  evidence.^  Had  not  such  been  the  case,  the  decision 
would  probably  have  been  the  other  way ;  for  whei'e  a  bill  was  filed 
to  set  aside  a  bond  given  to  a  banking  firm  on  the  ground  of  fraud, 
and  it  appeared  that  before  the  commencement  of  the  suit,  the 
partner,  who  originally  managed  the  transaction,  had  retired  from, 
the  firm,  had  become  a  certificated  bankrupt,  and,  according  to  his- 

1  Sandilands  v.  Marsh,  2  B.  &  A.  673,  678,  679;  E.  v.  Hardwick,  11  East,., 
589;  Fox  v.  Clifton,  6  Bing.  792;  Nicholls  v.  Dowding,  1  Stark.  R.  81; 
Hodenpyl  v.  Yingerhoed,  Chitty,  Bills,  627,  n.  q;  Van  Reimsdyk  v.  Kane,  1 
Gall.  630,  635;  Coit  v.  Tracy,  8  Conn.  268.     Ante,  ^  185. 

2  Latch  V.  Wedlake,  11  A.  &  E.  959,  965,  966. 

*  "Wood  V.  Braddick,  1  Tannt.  105,  per  Sir  J.  Mansfield ;  Petherick  v.. 
Turner,  cited  id. ;  Kilgour  v.  Finlyson,  1  H.  Bl.  155. 

*  Burton  v.  Issitt,  5  B.  &  A.  267;  Bell  v.  Morrison,  1  Pet.  371. 

=  Wood  V.  Braddick,  1  Taunt.  104.     See  Parker  v.  Morrell,  2  Phill.  453. 

^  1  Russ.  &  Myl.  191,  199,  200.  See  Loomis  and  Jackson  v.  Loomis,  3 
Deane,  Verm.  R.  198,  where  it  was  held  generally,  that  the  admissions  of  one 
partner,  made  after  the  dissolution  of  partnership,  in  regard  to  the  business 
of  the  firm  previously  transacted,  are  admissible  as  evidence  against  all  the 
partners. 

^  See  and  compare  the  observations  of  Ld.  Cottenham,  in  Parker  v.  Morrell, 
2  Phill.  464,  465;  of  the  Reporter  in  S.  C.  464,  n.  b;  and  of  Cress-well,.  J., 
in  S.  C.  on  issue  tried  at  Nisi  Prius,  2  C.  &  Kir.  603. 
13  LAW  OF  EVID. — V.  II.  (3399) 


532  ACKNOWLEDGMENT  OF  DEBT  BY  PARTNER.  [PAET  II. 

own  admission,  had  long  ceased  to  have  any  interest  in  the  bond, 
the  court  held  that  the  answer  of  this  man,  who  had  been  made  a 
defendant  as  executor  of  another  partner,  and  who  admitted  the 
fraud,  was  not  receivable  in  evidence  against  his  co-defendants,  the 
continuing  partners.' 

§  600.  It  deserves  notice,  that  neither  a  written  acknowledgment  §  537 
of  a  partnership  debt  by  one  member  of  a  firm,  nor  a  written 
promise  by  him  to  pay  it,  nor  even  actual  payment  by  him  of  the 
interest,  or  part  payment  of  the  principal  due,  whether  made  during 
the  partnership,  or  after  the  dissolution,^  will  take  the  case  out  of 
the  Statute  of  Limitations,  as  against  the  other  members;^  but 
this, — as  will  hereafter  appear,^ — is  owing  to  the  salutary  operation 
of  Lord  Tenterden's  Act  of  1828,^  as  extended  by  the  Mercantile 
Law  Amendment  Act  of  1856.^ 

§  601.  It  is  true  that  Lord  Tenterden's  Act,  in  the  enactment  ?  538 
just  referred  to,  speaks  merely  of  joint  contractors,  and  does  not  in 
terms  mention  paj'^?iers;  and  consequently  here, — as  in  other  cases 
where  the  language  of  the  Legislature  is  in  the  remotest  degree 
doubtful, — a  distinction  has  been  attempted  to  be  drawn  between 
these  two  classes  of  persons,  and  it  has  been  contended  that  a  sig- 
nature by  one  of  several  partners,  using  the  name  of  the  firm,  will 
take  the  case  out  of  the  statute  as  to  all  the  partners,  in  a  transac- 
tion in  which  all  are  interested,  because  a  partnership  name  is  the 
name  of  each  and  every  member  of  the  firm.  In  the  case  where 
this  subtle  and  forlorn  point  was  raised,  the  court  found  it  un- 
necessary to  express  an  opinion  upon  it;'  but  as  a  ruling  in  its 
favour  would  manifestly  fritter  away  the  provisions  of  a  very  bene- 
ficial enactment,  it  is  presumed  that,  if  the  objection  should  again 
be  taken,  the  judges  would  not  hesitate  to  negative  its  validity.^ 


I  Parker  r.  IMorrell,  2  Phill.  453;  2  C.  &  Kir.  599,  S.  C. 

'^  Bristow  V.  Miller.  11  Ir.  Law  E.  461;  Watson  v.   Woodman,   20  Law  Eep., 
Eq.  721;  45  L.  J.,  Ch.  57;  S.  C. 
^  Jones  V.  Ryder,  4  M.  &  W.  32;  Hopkins  v.  Logan,  5  id.  248,  per  Parke,  B. 
*  Post,  ?|  744,  745.  ^  9  G.  4,  c.  14,  I  1. 

«19&20  v.,  c.  97,  I  14. 
7  Clark  V.  Alexander,  8  Scott,  N.  R.  160,  163. 
*See  Bristow  v.  Miller,  11  Ir.  Law  R.  461. 

(3400) 


CHAP.  VII.]       DECLARATIONS  OF  AGENTS,  WHEN  ADMISSIBLE.  533 

§  602.'  The  declarations  of  agents  are  admissible  against  their  g  539 
principals  on  grounds  very  similar  to  those  which  govern  the 
declarations  of  co-partners.  The  principal  constitutes  the  agent  as 
his  representative  in  the  transaction  of  certain  business.  What- 
ever, therefore,  the  agent  does  in  the  lawful  prosecution  of  that 
business,  is  the  act  of  the  principal;  and  as  Mr.  Justice  Story  ob- 
serves, "  where  the  acts  of  the  agent  will  bind  the  principal,  there 
his  representations,  declarations,  and  admissions,  respecting  the 
subject  matter,  will  also  bind  him,  if  made  at  the  same  time,  and 
constituting  part  of  the  res  gestae."  ^  They  are  original  evidence 
and  not  hearsay,  and,  not  being  regarded  as  verbal  acts,  they  are 
receivable  in  evidence  without  calling  the  agent  himself  to  prove 
them.^  Still,  the  admission  of  the  agent  cannot  always  be  assimi- 
lated to  the  admission  of  the  principal.  The  party's  own  admis- 
sion, whenever  made,  may  be  given  in  evidence  against  him: 
but  the  admission  or  declaration  of  his  agent  binds  him  only 
when  it  is  made  during  the  continuance  of  the  agency,  in  regard 
to  a  transaction  then  depending,  et  dum  fervet  opus.*  When  the 
agent's  right  to  interfere  in  the  particular  matter  has  ceased,  the 
principal  can  no  longer  be  affected  by  his  declarations,  any  more 
than  by  his  acts,  but  they  will  be  rejected  in  such  case  as  mere 
hearsay.^ 

§  603.  Thus,  when  a  horse-dealer,  or  livery-stable   keeper,  em-    i  539 
ploys  a  servant  to  sell  a  horse,  any  statement  made  by  him  respect- 
ing the  horse   at  the  time  of  sale,  even  though   it  amount  to  a 
warranty  of  soundness,**  which  the  servant  has  been  really  ordered 

>  Gr.  Ev.  §  113,  in  part. 

2  Story,  Agen.  §  134.  *  Doe  v.  Hawkins,  2  Q.  B-  212. 

*  See  Kirkstall  Brewery  Co.  v.  Furness  Ry.  Co.,  9  Law  Rep.,  Q.  B.  468;  43  -L. 
J.,  Q.  B.  142,  S.  C;  Re  Devakx  Prov.  Gold  Min.  Co.,  L.  R.,  22  Cli.  D.  593;  52 
L.  J.,  Ch.  434,  S.  C. 

s  Fairlie  v.  Hastings,  10  Ves.  123,  126,  127,  per  Sir  W.  Grant;  Garth  v. 
Howard,  8  Bing.  451;  Langhorn  v.  Allnutt,  4  Taunt.  519,  perGibbs,  J.;  Betham 
V.  Benson,  Gow,  R.,  45,  per  DalLis,  C.  J.;  Mortimer  r.  M'Callan,  6  M.  &  W. 
58,  69,  73;  R.  v.  Hall,  8  C.  &.  P.  358,  per  Littledale,  J.;  The  Mechanics'  Bk. 
of  Alexandria  v.  Bk.  of  Columbia,  5  Wheat.  336,  337;  Hannay  v.  Stewart,  6 
Watts,  487,  489;  Stockton  v.  Demuth,  8  Watts,  39;  Stewartson  v.  Watts,  id. 
392;  Baring  v.  Clark,  19  Pick.  220;  Bk.  of  Monroe  t'.  Field,  2  Hill,  R.  445; 
Story  .Agen.  ??  134,  137. 

«  Brady  v.  Tod,  30  L.  J.,  C.  P.  224,  per  Erie,  C.  J.     But  the  servant  of  a 

(3401) 


534  DECLARATIONS  OF   AGENTS,  WHEN  ADMISSIBLE.  [PAKT  II. 

not  to  give,  will,  as  it  seems,  bind  the  master; '  but  the  servant's 
declarations  or  acknowledgments  at  any  other  time,  whether  made 
to  the  purchaser  or  to  a  stranger,  will  not  be  received.^  So,  if  a 
letter  written  by  an  agent  form  the  whole  or  part  of  an  agreement, 
which  by  the  course  of  his  business  he  was  authorised  to  make,  it 
will  be  admissible  against  the  principal;  but  if  it  be  offered  as 
proof  of  the  contents  of  a  pre-existing  contract,  or  if  it  contain  an 
account  of  transactions  already  performed,  it  will  probably  be  re- 
jected, though  addressed  to  the  principal  himself;''  unless  the 
principal  has  replied  to  it,  or  has  otherwise  adopted  or  acted  upon 
it,  in  which  case  the  agent's  letter  will  be  received  as  explanatory 
of  the  principal's  conduct.* 


§  604.  The  law  upon  this  subject  has  been  well  explained  by  Sir  ?  540 
William  Grant,  in  the  case  of  Fairlie  v.  Hastings.^  "  As  a  general 
proposition,"  said  he,  "  what  one  man  says,  not  upon  oath,  cannot 
be  evidence  against  another  man.  The  exception  must  arise  out  of 
some  peculiarity  of  situation,  coupled  with  the  declarations  made 
by  one.  An  agent  may  undoubtedly,  within  the  scope  of  his 
authority,  bind  his  principal  by  his  agreement;  and  in  many  cases 
by  his  acts.  What  the  agent  has  said  may  be  what  constitutes  the 
agreement  of  the  principal;  or  the  representations  or  statements 
made  may  be  the  foundation  of,  or  the  inducement  to,  the  agree- 
ment. Therefore,  if  writing  is  not  necessary  by  law,  evidence  must 
be  admitted  to  prove  that  the  agent  did  make  the  statement  or  re- 
presentation. So,  with  regard  to  acts  done,  the  words  with  which 
those   acts   are   accompanied   frequently  tend  to  determine   their 


private  owner,  intrusted  to  sell  a  horse,  not  at  a  fair  or  public  mart,  but  on 
some  one  particular  occasion,  has  no  implied  authority  to  bind  his  master  by  a 
warranty,  id.  223;  S.  C.  nom.  Brady  v.  Todd,  9  Com..  B.,  N.  S.  592.  See 
Miller  v.  Lawton,  3  New  R.  430;  15  Com.  B.,  N.  S.  834,  S.  C. 

1  Howard  v.  Sheward,  36  L.  J.,  C.  P.  42;  2  Law  Rep.,  C.  P.  148,  S.  C. 

^  Allen  V.  Denstone,  8  C.  &  P.  760,  per  Erskine,  J. ;  Helyear  v.  Hawke,  5 
Esp.  72,  per  Ld.  EUenborough.  See,  also,  Peto  v.  Hague,  5  Esp.  134,  per  Ld. 
Ellenborough;  Gt.  West.  Ry.  Co.  v.  Willis,  34  L.  J.,  C.  P.  195;  18  Com.  B.,  N. 
S.  748,  S.  C. 

^  Fairlie  v.  Hastings,  10  Ves.  128;  Langhom  v.  Allnutt,  4  Taunt.  511;  Kahl 
V.  Jan-sen,  id.  565;  Reyner  v.  Peanson,  id.  662. 

*  Coates  V.  Bainbridge,  5  Bing.  58.  *  10  Ves.  126,  127. 

(3402) 


CHAP.  VII.]    DECLARATIONS  OF  AGENTS,  WHEN  ADMISSIBLE.  535 

quality.  The  party,  therefore,  to  be  bound  by  the  act,  must  be 
affected  by  the  words.  But,  except  in  one  or  the  other  of  those 
ways,  I  do  not  know  how  what  is  said  by  an  agent  can  be  evidence 
against  his  principal.  The  mere  assertion  of  a  fact  cannot  amount 
to  proof  of  it;  though  it  may  have  some  relation  to  the  business, 
in 'which  the  person  making  that  assertion  was  employed  as  agent- 
*  *  *  The  admission  of  an  agent  cannot  be  assimilated  to  the 
admission  of  the  principal.  A  party  is  bound  by  his  own  admis- 
sion; and  is  not  permitted  to  contradict  it.  But  it  is  impossible  to 
say  that  a  man  is  precluded  from  questioning  or  contradicting  any- 
thing any  person  has  asserted  as  to  him,  respecting  his  conduct  or 
his  agreement,  merely  because  that  person  has  been  an  agent  of  his. 
If  any  fact,  material  to  the  interest  of  either  party,  rests  in  the 
knowledge  of  an  agent,  it  is  to  be  proved  by  his  testimony,  not  by 
his  mere  assertion." 


§  605.  As  the  rule  admitting  the  declarations  of  the  agent  is  ?  541 
founded  upon  his  legal  identity  with  the  principal,  they  bind  only 
so  far  as  the  agent  had  authority  to  make  them.'  The  declarations, 
therefore,  and  acts  of  an  agent  cannot  bind  an  infant,  because  an 
infant  cannot  appoint  an  agent;  and,  consequently,  if  an  infant, 
even  by  letter  of  attorney,  appoints  a  person  to  make  a  lease,  he  will 
not  be  bound  thereby,  neither  will  his  ratification  bind  him;  but 
the  lease  of  an  infant  to  be  good,  must  be  his  own  personal  act.'"' 
When,  however,  the  principal  is  of  full  age,  and  the  authority  is 
express,  he  will  be  bound  by  the  declarations  and  acts  of  his  agent, 
and  no  difficulty  can  well  arise  in  applying  this  rule;  but  questions 
of  much  nicety  will  often  occur,  where  power  to  make  an  admission 
is  sought  to  be  inferred  by  implication  from  an  authority  to  do  a 
certain  act.  A  few  examples  may  furnish  some  guide  upon  this 
subject.  Thus,  where  a  wife  is  authorised,  in  her  husband's  ab- 
sence, to  carry  on  the  business  of  his  shop,  her  admissions,  made 
on  application  to  pay  for  goods  previously  delivered  at  the  shop,  will 


'  See  Faussett  v.  Faussett,  7  Ec.  &  Mar.  Cas.  93—95;  Hogg  v.  Garrett,  12 
Ir.  Eq.  R.  559. 

2  Doe  V.  Roberts,  16  M.  &  W.  778,  780,  781,  per  Parke,  B.      See  Hargrave 
V.  Hargrave,  12  Beav.  408. 

(3403) 


536   THREE  CLASSES  OF  DECLARATIONS  ORIGINAL  EVIDENCE.  [PAKT  II. 

be  received  iu  evidence  against  the  husband;'  but  her  acknowledg- 
ments of  an  antecedent  contract  for  the  hire  of  the  shop,  or  her 
agreement  to  make  a  new  contract  for  the  future  occupation  of  it, 
will  be  rejected,  as  it  cannot  be  necessaiy  that  the  wife  should  have 
this  extensive  power  of  binding  her  husband,  for  the  mere  purpose 
of  conducting  the  business  of  the  shop.^  So,  if  goods  were  de- 
posited with  a  pawnbroker  in  the  ordinary  course  of  his  business,  a 
declaration  of  the  shopman  that  his  master  had  received  the  goods, 
would  probably  be  admissible  against  the  master,  because  it  might 
well  be  assumed  that  the  shopman  was  authorised  to  answer  any  in- 
quiries respecting  the  goods,  made  by  persons  interested  in  them; 
but  if  the  admission  related  to  a  transaction  unconnected  with  the 
immediate  business  of  the  shop, — as,  for  instance,  if  it  referred  to 
the  loan  of  several  hundred  pounds  on  a  single  pledge  at  live  per 
cent,  interest, — it  would  not  be  received.^  Again,  although  the 
solicitor  of  a  judgment  creditor  may  fairly  be  assumed  to  have 
acted  as  his  client's  agent  in  directing  the  issue  of  a  li.  fa.,  because 
the  taking  such  a  step  might  be  essentially  necessary  for  the  benefit 
of  the  client,  yet  the  law  would  not  consider  that  he  was  acting 
within  the  scope  of  any  implied  authority,  were  he  to  give  to  the 
sheriff  special  instructions  to  seize  particular  goods.* 

§  606.^  The  foregoing  observations  will  have  shown  that  there  ?  542 
are  three  classes  of  declarations,  which,  though  usually  treated 
under  the  head  of  hearsay,  are,  in  truth,  original  evidence;  the 
first  class  consisting  of  cases  where  the  fact  that  the  declaration 
was  made,  and  not  its  truth  or  falsity,  is  the  point  in  question; 
the  second  including  expressions  of  bodily  or  mental  feelings, 
where  the  existence  or  nature  of  such  feelings  is  the  subject  of 
inquiry;  and  the  third  embracing  all  other  cases,  where  the  de- 
claration offered  in  evidence  may  be  regarded  as  part  of  the  res 
gestce.  All  these  classes  are  involved  in  the  principle  of  the  last, 
and  have  been  separately  treated  merely  for  the  sake  of  greater 
distinctness. 

1  Clifford  V.  Burton,  1  Bing.  192;  8  Moore,  16,  S.  C. 

^  Meredith  v.  Footner,  11  M.  &  W.  202. 

'  Garth  v.  Howard,  8  Bing.  451. 

*  Smith  V.  Keal,  L.  R.,  9  Q.  B.  D.  340,  per  Ct.  of  App.;  51  L.  J.,  Q.  B.  487, 
S.  C,  in  court  below,  noni.  Keal  v.  Smith. 
•  *  Gr.  Ev.  ^  123,  in  great  part. 

(3404) 


CHAP.  VIII,]       SIX  EXCEPTIONS  TO  RULE  REJECTING  HEARSAY.  537 

CHAPTER  VIII. 

MATTERS    OF    PUBLIC    AND    GENERAL    INTEREST. 

§  607.'  Having  illustrated  the  nature  of  hearsay  evidence,  shown  I  543 
the  reasons  on  which  it  is  generally  excluded,  and  explained  the 
distinction  between  such  evidence  and  that  which  is  original^  it 
will  next  be  convenient  to  consider  the  cases  in  ichich  the  rule  re- 
jecting hearsay  has  been  relaxed.  These  cases  may  be  conveniently 
divided  into  six  classes: — first,  those  relating  to  matters  of  public 
and  general  interest  ;  secondly,  those  relating  to  pedigree  ; 
thirdly,  those  relating  to  ancient  possession;  fourthly,  declara- 
tions against  interest; — fifthly,  declarations  in  the  course  of  ofifice 
or  business;  and  lastly,  dying  declarations.  It  will  be  observed, 
that  these  exceptions,  which  are  allowed  only  on  the  ground  of  the 
assumed  absence  of  better  evidence,  and,  as  it  were,  from  necessity, 
meet  most  of  the  inconveniences  that  would  result  from  a  stern 
and  universal  application  of  the  rule,  and  thus  remove  the  principal 
objections  which  have  been  urged  against  it.  The  exceptions  will 
now  be  discussed  in  their  order. 

§  608.  And  first,  the  admissibility  of  hearsay  evidence  respect-  §  544 
ing  matters  of  public  and  general  interest,  appears  to  rest  mainly 
on  the  following  grounds: — that  the  origin  of  the  rights  claimed 
is  usually  of  so  ancient  a  date,  and  the  rights  themselves  are  of 
so  undefined  and  general  a  character,  that  direct  proof  of  their 
existence  and  nature  can  seldom  be  obtained,  and  ought  not  to 
be  required;  that  in  matters,  in  which  the  community  are  in- 
terested, all  persons  must  be  deemed  conversant;  that  as  common 
rights  are  naturally  talked  of  in  public,  and  as  the  nature  of  such 
rights  much  lessens  the  probability,  if  it  does  not  exclude  the 
possibility,  of  individual  bias,  what  is  dropped  in  conversation 
respecting  them  may  be  presumed  to  be  true;  that  the  general 
interest  which  belongs  to  the  subject  would  lead  to  immediate 
contradiction    from  others,   if    the    statements  proved  were  false; 


1  Gr.  Ev.  ?i  127,  in  part. 

(3403) 


538  MATTERS  OF  PUBLIC  AND  GENERAL  INTEREST.         [PAET  II. 

that  reputation  can  hardly  exist  Avithout  the  concurrence  of  many 
parties  unconnected  with  each  other,  who  are  all  more  or  less 
interested  in  investigating  the  subject;  that  such  concm-rence 
furnishes  strong  presumptive  evidence  of  truth;  and  that  it  is 
this  prevailing  current  of  assertion  which  is  resorted  to  as  evidence, 
for  to  this  every  member  of  the  community  is  supposed  to  be  privy, 
and  to  contribute  his  share.* 


§  609."  In  speaking  of  matters  of  public  and  general  interest,  the  I  545 
terms  "  public  "  and  "  general  "  are  sometimes  used  as  synonyms, 
meaning  merely  what  concerns  a  multitvide  of  persons.^  But,  in 
regard  to  the  admissibility  of  hearsay  testimony,  a  distinction  has 
been  taken  between  them;  the  term  inihlic  being  strictly  applied 
to  that  which  concerns  every  member  of  the  state;  and  the  term 
general  being  confined  to  a  lesser,  though  still  a  considerable, 
portion  of  the  community.  This  distinction  should  be  carefully 
attended  to,  because  in  matters  strictly  public,  such,  for  example, 
as  a  claim  of  highway  or  a  right  of  ferry,  reputation  from  any  one 
appears  to  be  receivable  ;  and  although  declarations  would  be 
almost  worthless,  unless  made  by  persons  who,  by  living  in  the 
neighbourhood,  or  by  frequently  using  the  road  or  feny,  or  the 
like,  are  shown  to  have  had  some  means  of  knowledge;  yet,  the 
want  of  such  proof  of  their  connexion  with  the  subject  in  question 
seems  to  affect  the  value  only,  and  not  the  admissibility,  of  the 
evidence.  If,  however,  the  right  in  dispute  be  simply  general; 
that  is,  if  those  only  who  live  in  a  particular  district,  or  adventure 
in  a  particular  enterprise,  are  interested  in  it,  hearsay  from  per- 
sons wholly  unconnected  with  the  place  or  business  would  be  not 
only  valueless,  but  probably  altogether  inadmissible.* 


1  Wright  V.  Doe  d.  Tatham,  7  A.  &  E.  360,  361,  per  Coltman,  J.;  S.  C.  4 
Bing.  N.  C.  528,  per  Alderson,  B. ;  Moorwood  v.  Wood,  14  East,  239,  n.,  per 
Ld.  Kenj'on;  Weeks  v.  Sparke,  1  M.  &  Sel.  686,  per  Ld.  Ellcnboroiigh; 
Berkeley  Peer.,  4  Camp.  415,  416,  per  Sir  J.  Mansfield;  R.  v.  Bedfordshire, 
4  E.  &  B.  542,  per  Ld.  Campbell,  adopting  almost  the  language  above  em- 
ployed. 2  Qj..  Ev.  ?  128,  in  part. 

3  Pirn  V.  Cnrrell,  6  M.  &  W.  234. 

*  Crease  v.  Barret,  1  C.  M.  &  E.  929,  per  Parke,  B.  By  the  Roman  law, 
reputation,  or  common  fame,  seems  to  have  been  admissible  in  evidence  in  all 
cases;   but  it  was  not  generally  deemed  sufficient  proof,  and,  in  some  cases, 

(3406) 


CHAP.  VIII.]        MATTERS  OF  PUBLIC  AND  GENERAL  INTEREST.  539 

§  610.  Thus,  if  a  dispute  were  to  arise  respecting  the  existence  §  546 
of  a  local  custom,  in  which  all  the  tenants  of  a  manor  were  inte- 
rested, evidence  of  reputation  would  be  admissible,  not  only  from 
any  deceased  tenant,  but  from  any  deceased  resident  within  the 
manor;  for  it  might  fairly  be  presumed  that  the  residents,  being 
persons  conversant  with  the  neighborhood,  would  be  acquainted 
with  the  local  customs.^  So,"  where  the  question  was  whether 
Nottingham  Castle  was  within  the  hundred  of  Broxtowe,  certain 
ancient  orders,  which  were  made  by  the  Justices  at  the  Quarter 
Sessions  for  the  county,  and  in  which  the  castle  was  described 
as  being  within  that  hundred,  were  held  admissible  evidence  of 
reputation ;  the  justices,  though  not  proved  to  have  been  residents 
within  the  county  or  hundred,  being  presumed,  from  the  nature  and 
character  of  their  offices  alone,  to  have  had  sufficient  acquaintance 
with  the  subject  in  dispute,  to  make  the  statements  in  their  order 
admissible.^ 


not  even  semiplena  jyrobaiio,  unless  corroborated;  nisi  aliis  ndminiculis  adjuvetur. 
1  Masc.  de  Prob.,  Concl.  171,  n.  1;  Concl.  183,  n.  2;  Concl.  547,  n.  19.  It 
was  held  sufficient,  plena  probaiio,  wherever,  from  the  nature  of  the  case,  better 
evidence  was  not  attainable;  ubi  a  communiter  accident ibus,  prohatio  difficilis 
est,  fama  plenam  solet  probationem  facere;  ut  in  probatione  filitionis.  But 
Mascardus  deems  it  not  sufficient,  in  cases  of  pedigree  within  the  memory  of 
man,  which  he  limits  to  fifty-six  years,  unless  aided  by  other  evidence — tunc 
nempe  non  sufficeret  publica  vox  et  fama,  sed  una  cum  ipsd  dcberet  iractaius  et 
nominatio  probari,  vel  alia  adminicula  urgent ia  adJdberi.  1  Masc.  de  Prob., 
Concl.  411,  n.  1,  2,  6,  7. 

'  Ld.  Dunraven  v.  Llewellyn,  15  Q.  B.  809,  per  Parke,  B.  See  "Warrick  v. 
Queen's  Coll.,  Oxford,  40  L.  J.,  Ch.  785,  788,  per  Ld.  Hatherley,  C.  The 
actual  discussion  of  the  subject  in  the  neighbourhood,  was  a  fact  also  relied 
on,  in  the  Roman  law,  in  cases  of  proof  by  common  fame.  "  Quando  testis 
vult  probare  aliquem  scivisse,  non  videtur  sufficere,  quod  dicat  ille  scivit  quia 
erat  vicinus;  sed  debet  addere,  in  vicinia  hoc  erat  cognitum  per  famam,  vel 
alio  modo;  et  ideo  iste,  qui  erat  vicinus,  potuit  id  scire."  2  Henoch,  de 
Prses.  lib.  6,  Prses.  24,  n.  17,  p.  772.  See,  also,  1  INIasc.  de  Prob.  389,  390, 
Concl.  395,  n.  1,  2,  19,  9,  where  the  law  is  thus  laid  down: — "Coufines  pro- 
bantur  per  testes.  Verum  scias  velim,  testes  in  hac  materia,  qui  vicini,  et 
circum  ibi  habitant,  esse  magis  idoneos  quam  alios.  Si  testes  non  sentiant 
commodum  vel  incommodum  immediatum,  possint  pro  sua  communitate 
deponere.  Licet  hujusmodi  testes  sint  de  universitate,  et  deponant  super 
confinibus  suae  universitatis,  probant,  dummodum  prsecipuum  ipsi  commodum 
non  sentiant  licet  inferant  commodum  in  universum. ' ' 

^  Gr.  Ev.  §  129,  in  part. 

'  D.  of  Newcastle  v.  Broxtowe,  4  B.  &  Ad.  273. 

(3407) 


540         DECLARANT  MUST  HAVE  COMPETENT  KNOWLEDGE.         [PART  II. 

§  611.  Again,  wlieii  the  question  related  to  the  custom  of  min-  §  545 
ing  in  a  particular  district,  persons,  under  whose  estates  the 
minerals  lay,  with  respect  to  which  the  custom  was  said  to  exist, 
were  held  to  bo  sufficiently  connected  with  the  subject  to  make 
their  declarations  evidence,  as  they  were  more  likely  than  others 
living  at  a  distance  to  become  adventurers,  and  consequently  to  be 
subjected  to  the  operation  of  the  custom.'  But  where  the  point  at 
issue  was,  whether  the  City  of  Chester  anciently  formed  part  of  the 
County  Palatine,  an  old  document,  purporting  to  be  a  decree  of 
certain  law  officers  and  dignitaries  of  the  Crown,  not  having 
authority  as  a  Court,  was  held  inadmissible  as  evidence  of  repu- 
tation, because  those  personages  had  no  peculiar  knowledge  of  the 
subject,  excepting  what  they  derived  in  the  course  of  that  un- 
authorised proceeding.^  Hence  it  appears  that  comijetent  knoicledge 
in  the  declarant  is  an  essential  pre-requisite  to  the  admission  of  his 
testimony;  and  although  all  the  Queen's  subjects  are  presumed  to 
have  that  knowledge,  in  some  degree,  where  the  matter  is  of  public 
concernment,  yet,  in  other  matters,  which  are  not  strictly  public, 
though  they  are  interesting  to  many  persons,  some  particular 
evidence  of  such  knowledge  is  generally  required. 


§  612.  If  the  quality  of  the  hearsay  itself  raises  a  natural  §  547 
inference  that  it  was  derived  from  persons  acquainted  with  the 
subject,  the  courts  will  not  require  independent  proof  of  that 
fact;  and,  therefore,  where  the  question  turned  on  a  manorial 
custom,  depositions,  purporting  to  have  been  made  by  copy- 
holders in  an  ancient  suit  between  a  former  lord  and  a  person 
claiming  admission  to  a  copyhold,  were  admitted  in  evidence 
without  proof  that  the  persons  making  them  were  either  copy- 
holders, or  were  otherwise  acquainted  with  the  customs  of  the 
manor;  for  the  court  assumed  that  such  persons  would  not  have 
been  brought  forward  as  witnesses,  had  they  been  ignorant  of  the 
subject.^     So,  an  ancient  unsigned  customary  of  a  manor,  which 


^  Crease  v.  Barrett,  1  C.  M.  &  R.  919,  928—930. 

^  Rogers  v.  Wood,  2  B.  &  Ad.  245,  256,  recognised  by  the  Ct.  of  Ex.  in 
Crease  v.  Barrett,  1  C.  M.  «&  R.  928,  929.  See,  also,  Evans  v.  Taylor,  7  A.  & 
E.  617,  626,  627.  But  see  Freeman  v.  Read,  32  L.  J.,  M.  C.  226;  4  B.  &  S. 
174,  S.  C.  2  Freeman  v.  Phillipps,  4  M.  &  Sel.  486. 

(3408) 


CHAP.  VIII.]       EXAMPLES    OF   MATTERS    OF    PUBLIC    INTEREST.  541 

purported  to  be  ex  assensu  omnium  tenentium,  and  wliicli  had  been 
handed  down  with  the  court  rolls  from  steward  to  steward,  was 
received  as  evidence  to  prove  the  course  of  descent  within  the 
manor.'  But  where,  in  order  to  prove  the  boundaries  of  a  manor, 
an  ancient  survey  was  produced  from  the  proper  custody,  which 
purported  to  have  been  made  in  the  time  of  Queen  Elizabeth  by 
a  deputy  surveyor  appointed  by  the  Crown,  and  to  have  been 
founded  on  the  presentments  of  certain  tenants  of  the  manor, 
whose  names  were  appended  to  it,  the  court  rejected  the  docu- 
ment, on  the  ground  that  no  proof  had  been  given  that  the 
dejDuty  surveyor  had  any  authority  to  institute  the  inquiry  ;  and, 
stripped  of  this  authority,  he  not  only  had  no  right  to  make  any 
kind  of  return,  but  the  presumption  that  he  did  make  one  fell  to 
the  ground.  The  paper  might  have  been  written  by  any  clerk 
idling  in  the  office  where  it  was  found,  from  his  own  imagination, 
or  compiled,  possibly,  by  some  interested  person  in  furtherance  of 
a  sinister  object  of  his  own." 

§  613.  It  may  be  here  expedient  to  enumerate  a  few  of  the  ?  548 
principal  questions,  which  have  been  deemed  to  involve  matters 
of  public  or  general  interest,  and  to  contrast  these  with  some 
others,  which  the  courts  have  considered  to  be  of  too  private  a 
nature,  to  allow  of  their  being  illustrated  by  evidence  of  reputa- 
tion. Thus,  on  the  one  hand,  liearsay,^~or,  in  other  words,  evi- 
dence of  reputation, — has  been  admitted,  where  the  question  related 
to  a  right  of  common  existing  by  immemorial  custom,''  a  feeding 
per  cause  de  vicinage  resting  on  a  similar  foundation,*  a  parochial  ^ 
or  other  district  modus,®  a  manorial  custom,'  a  custom  of  mining 

1  Denn  v.  Spray,  1  T.  R.  466,  473.     See  Chapman  v.  Cowlan,  13  East,    10. 

2  Evans  v.  Taylor,  7  A.  &  E.  617,  626,  627.  See,  also,  D.  of  Beaufort  v. 
Smith,  4  Ex.  R.  450  ;  Daniel  v.  Wilkin,  7  Ex.  R.  429.  But  see  Freeman  v. 
Read,  32  L.  J.,  M.  C.  226  ;  4  B.  &  S.  174,  S.  C;  Smith  v.  Ld.  Brownlow, 
9  Law  Rep.,  Eq.  241  ;  D.  of  Devonshire  v.  Neill,  2  L.  R.  Ir,  132.  160—162, 
per  Palles,  C.  B. 

^  Weeks  ?).  Sparke,  1  INI.  &  Sel.  679 ;  explained  in  Ld.  Dunraven  v. 
Llewellyn,  15  Q.  B.  811,  812. 

*  Prichard  v.  Powell,  10  Q.  B.  589  ;  explained  in  Ld.  Dunraven  v. 
Llewellyn,  15  Q.  B.  812. 

5  Moseley  v.  Davies,  11  Price,  162  ;  White  v.  Lisle,  4  Madd.  214,224,  225  ; 
Short  V.  Lee,  4  Jac.  &  W,  464,  473. 

6  Rudd  V.  Wright,  1  Ph.  Ev.  240.  '  Doe  v.  Sisson,  12  East,  62. 

(3409) 


542  EXAMPLES   OF   MATTERS   OF  PUBLIC    INTEREST.      [ PART  II. 

in  a  particular  district,*  a  custom  of  a  corporation  to  exclude 
foreic^ners  from  trading  within  a  town,'  the  limits  of  a  town,^  the 
extent  of  a  parish,*  the  boundary  between  counties,  parishes, 
hamlets,  or  manors,^  or  even  between  a  reputed  manor, — that  is,  an 
estate  which  from  some  intervening  defect  has  ceased  to  be  an 
actual  manor, — and  the  freehold  of  a  private  individual,*^  or  between 
old  and  new  land  in  a  manor,'  a  claim  of  tolls  on  a  public  road,^ 
the  fact  whether  a  road  was  public  or  private,^  a  prescriptive 
liability  to  repair  sea-walls,'"  or  bridges,"  a  claim  of  highway,'"  a 
rio-ht  of  ferry, '^  the  fact  whether  land  on  a  river  was  a  public 
landino-.place  or  not,"  the  existence  and  rights  of  a  parochial 
chapelry,'^  the  jurisdiction  of  a  court,  and  the  fact  whether  it  was 
a  court  -of  record  or  not,'^  the  existence  of  a  manor,"  a  prescrip- 
tive right  of  toll  on  all  malt  brought  by  the  west  country  barges 
to  London,'^  a  right  by  immemorial  custom,  claimed  by  the 
deputy  day  meters  of  London,  to  measure,  shovel,  unload  and 
deliver  all  oysters  brought   by  boat  for  sale  within  the  limits  of 

1  Crease  v.  Barrett,  1  C.  M.  &  K.  919,  928—930. 

"^  Davies  v.  Morgan,  1  C.  &  J.  587,  semble. 

•■'  Ireland  v.  Powell,  cited  Pea.  Ev.  16,  per  Cliambre,  J.,  and  recognised  by 
Williams,  J.,  in  R.  v.  Bliss,  7  A.  &  E.  555. 

<  R.  V.  Mytton,  2  E.  &  E.  557  ;  S.  C.  nom.  Mytton  v.  Thornbury,  29  L.  J. , 
M.  C.  109. 

*  Nicbolls  t'.  Parker,  14  East,  331,  n.;  Brisco  r.  Lomax,  8  A.  &  E.  198;  3 
N.  &  P.  388,  S.  C;  Evans  v.  Rees,  10  A.  &  E.  151  ;  2  P.  &  D.  627,  S.  C; 
Plaxton  V.  Dare,  10  B.  &  C.  17  ;  5  M.  &  R.  1,  S.  C;  Thomas  v.  Jenkine,  6 
A.  &  E.  525  ;  1  N.  &  P.  588,  S.  C. 

"  Doe  V.  Sleeman,  9  Q.  B.  298.  ''  Barnes  v.  Mawson,  1  M.  &  Sel.  81. 

^  Brett  V.  Beales,  M.  &  M.  416,  418,  per  Ld.  Tenterden. 

8  R.  V.  Bliss,  7  A.  &  E.  555,  per  Williams,  J. 

'"  R.  r.  Leigh,  10  A.  &  E.  398,  409,  411.  The  mere  fact  that  each  frontager 
has  always  repaired  the  sea  wall  in  front  of  his  land  is  not,  in  itself,  sufficient 
evidence  of  a  prescriptive  liability  to  maintain  the  wall.  Hudson  v.  Tabor, 
L.  R.,  2  Q.  B.  D.  290,  per  Ct.  of  App.;  46  L.  J.,  Q.  B.  463,  S.  C. 

'"  R.  V.  Sutton.  8  A.  &  E.  516  ;  3  N.  &  P.  569,  S.  C. 

J2  Crease  v.  Barrett,  1  C.  M.  &  R.  929,  per  Parke,  B. ;  Reed  r.  Jackson,  1 
East.  355.  ''  Pim.  v.  Curell,  6  M.  &  W.  234. 

"  Drinkwater  v.  Porter,  7  C.  &  P.  181,  per  Coleridge,  J. 

'5  Carr  v.  Mostyn,  5  Ex.  R.  69. 

i«  Goodtitle  v.  Dew,  Pea.  Add.  Cas.  204. 

•'  Steel  r.  Prickett,  2  Stark.  R.  466,  per  Abbott,  C.  J.;  Curzon  v.  Lomax,  5 
Esp.  60,  per  Ld.  Ellenborough. 

18  City  of  London  v.  Gierke,  Carth.  181  ;  D.  of  Beaufort  v.  Smith.  4  Ex.  R. 
450. 

(3410) 


CHAP.  VIII.]     EXAMPLES  OF  MATTERS  NOT  OF  PUBLIC  INTEREST.        543 

the  port  of  London,'  a  claim  by  the  lord  of  a  manor  to  all  coals 
lying  under  a  certain  district  of  the  manor,^  a  claim  of  heriot 
custom  in  respect  of  freehold  tenements  within  a  manor  held  in 
fee-simple,^  a  custom  of  electing  churchwardens  by  a  select  com- 
mittee,* and  a  prescriptive  right  to  free  warren  as  appurtenant  to 
an  entire  manor.  ^ 

§  614.  On  the  other  hand,  evidence  of  reputation  has  been  re-  I  549 
jected,  where  the  question  was,  what  usage  had  obtained  in  elect- 
ing a  schoolmaster  to  a  grammar  school,^  whether  the  sheriff  of 
the  county  of  Chester,  or  the  corporation  of  the  city  of  Chester, 
was  bound  to  execute  criminals,^  whether  certain  tenants  of  a 
manor  had  iirescriptive  rights  of  common  for  cattle  levant  and 
couchant,^  what  were  the  boundaries  of  a  waste  over  which  many 
of  the  tenants  of  a  manor  claimed  a  right  of  common  appendant,'' 
whether  the  lord  of  a  manor  had  a  prescriptive  right  to  all  wreck 
within  his  manorial  boundaries,'"  whether  the'  plaintiff  was  ex- 
clusive owner  of  the  soil,  or  had  a  right  of  common  only,"  whether 
the  land  in  dispute  had  been  purchased  by  a  former  occupief",  or 
was  part  of  an  entailed  estate  of  which  he  had  been  tenant  for 
life,'^  what  patron  formerly  had  the  right  of  presentation  to  a 
living,'^  whether  a  farm  modus  existed,  and  what  was  its  nature,'* 


1  Laybourn  v.  Crisp,  4  M.  &  W.  320. 

^  Barnes  v.  Mawson,  1  M.  &  Sel.  77,  81.  In  that  case  evidence  was  given 
of  an  uniform  exercise  of  the  right. 

•'  Damerell  v.  Protheroe,  10  Q.  B.  20.  *  Berry  v.  Banner,  Pea.  R.  156. 

s  Ld.  Carnarvon  v.  Villebois,  13  M.  &  W.  313. 

^  Withnell  v.  Gartham,  1  Esp.  324,  325,  per  Ld.  Keuyon. 

^  R.  V.  Antrobus,  2  A.  &  E.  793—795. 

»  See  Ld.  Dunraven  v.  Llewellyn,  15  Q.  B.  791,  811,  812,  overruling  Weeks 
V.  Sparke,  1  M.  &  Sel.  679;  Williams  v.  Morgan,  15  Q.  B.  782.  See,  also, 
and  compare  Warrick  v.  Queen's  Coll.,  Oxford,  40  L.  J.  785,  788,  per  Ld. 
Hatherley,  C.  '  Ld.  Dunraven  v.  Llewellyn,  15  Q.  B.  791. 

'»  Talbot  V.  Lewis,  1  C.  M.  &  R.  495;  5  Tyr.  1,  S.  C.  As  to  what  con- 
stitutes "  wreck  "  distinguished  from  "  flotsam,"  see  Stackpoole  v.  The  Queen, 
I.  R.,  9  Eq.  619. 

1'  Richards  v.  Bassett,  10  B.  &  C.   663,  semble,  per  Littledale,  J. ;  sed  qu. 

^2  Doer.  Thomas,  14  East,  323;  2  Smith,  L.  C.  432,  S.  C. 

"  Per  Ld.  Kenyon,  in  R.  v.  Eriswell,  3  T.  R.  723,  questioning  Bp.  of 
Meath  v.  Ld.  Belfield,  1  Wils.  215. 

"  Wells  V.  Jesus  College,  7  C.  &  P.  284,  per  Alderson,   B. ;  White  v.   Lisle, 

(3411) 


544  PRIVATE  PRESCRIPTIVE  RIGHTS  AND  LIABILITIES.      [PART  11. 

whetlier  a  party  had  a  private  right  of  way  over  a  particular 
field,'  whether  the  tenants  of  a  particular  manor  had  the  right  of 
cutting  and  selling  wood,^  and  what  were  the  boundaries  between 
two  private  estates.^  Where,  however,  it  was  shown  by  direct  testi- 
mony, the  admission  of  which  was  unopposed,  that  the  boundaries 
of  the  farm  in  question  were  identical  with  those  of  a  hamlet, 
evidence  of  reputation  as  to  the  hamlet  boundaries  was  let  in  for 
the  purpose  of  proving  those  of  the  farm;  for  though  it  was 
objected  that  evidence  should  not  be  thus  indirectly  admitted  in 
a  dispute  between  private  individuals,  the  court  overruled  the 
objection,  Mr.  Justice  Coleridge  observing,  that  "  he  never  heard 
that  a  fact  was  not  to  be  proved  in  the  same  manner  when 
subsidiary,  as  when  it  was  the  very  matter  in  issue."  * 

§  615.  The  question,  whether  evidence  of  reputation  is  admis-  §  ^^^ 
sible  to  prove  or  disprove  a  private  prescriptive  right  or  liability,  is 
involved  in  some  doubt.^  In  the  case  of  Morewood  v.  Wood,  where 
a  prescriptive  right  of  digging  stones  on  the  lord's  waste  was 
claimed  by  the  defendant,  as  annexed  to  his  estate,  and  the  lord 
offered  evidence  of  reputation  to  prove  that  no  such  right  existed, 
the  Judges  of  the  Court  of  King's  Bench  were  equally  divided  on 
its  admissibility;  *'  but,  since  in  that  case  it  is  difficult  to  see  how 
the  public  could  have  been  interested  in  the  matter,  unless  it  had 
been  shown, — which  it  was  not, — that  the  rights  of  the  commoners 
were  infringed  by  the  defendant's  claim,  such  evidence  would  pro- 
bably at  the  present  day  be  rejected.'  It  has,  howeverj  been  deter- 
mined by  the  Court  of   Queen's  Bench,  that,  on  the  trial   of  an 


4  Madd.  214,  224,  225;  Wright  v.  Riidd,  cited  1  Ph.  Ev.  241,  per  Ld.  Lynd- 
hurst.  See,  however,  Webb  v.  Petts,  Noy,  44;  Donnisou  i\  Elsley,  3  Eag.  & 
Y.  1.396,  n.;  and  cases  cited,  1  Ph.  Ev.  241,  n.  2. 

'  Semble,  per  Dampier,  J.,  in  Weeks  v.  Sparke,  1  M.  &  Sel.  691;  and  per 
Ld.  Kenyon,  in  Reed  v.  Jackson,  1  East,  357. 

2  Blackett  v.  Lowes,  2  M.  &  Sel.  494,  500,  per  Ld.  Ellenborough. 

^  Clothier  v.  Chapman,  14  East,  331,  n.  By  the  Roman  law,  the  evidence 
of  reputation  seems  to  have  been  deemed  admissible,  even  in  matters  of 
private  boundary.     Seel  Masc.  de  Prob.  391,  Concl.  396. 

*  Thomas  v.  Jenkins,  6  A.  &  E.  525,  529;  1  N.  &  P.  588,  S.  C.  See,  also, 
Brisco  V,  Lomax,  8  A.  &  E.  198,  213;  3  N.  &  P.  383,  S.  C. 

5  See  Prichard  v.  Powell,  10  Q.  B.  589. 

6  14  East,  327,  n.  '  See  ante,  H  610,  611. 

(3412) 


CHAP.  VIII.]  DISTINCTION  BETWEEN  PUBLIC  AND  PRIVATE  RIGHTS.  545 

indictment  against  the  inhabitants  of  a  county  for  the  non-repair  of 
a  public  bridge,  to  wliich  the  defendants  had  pleaded  that  certain 
persons  named  were  liable  to  repair  the  bridge  ratione  tenurse,  evi- 
dence of  reputation  was  admissible  to  support  the  plea.'  In  this 
case  it  was  very  properly  considered  that  the  fixing  an  individual 
with,  or  relieving  him  from,  such  a  liability  as  the  one  in 
question,  had  a  necessary  tendency  to  abridge  or  increase  the  lia- 
bility of  the  whole  neighbourhood," — and,  moreover,  that  the  ad- 
missibility of  evidence  of  reputation,  when  tendered  to  disjorove  a 
public  liability  or  right,  could  not  be  governed  by  a  difPerent  prin- 
ciple from  that  which  prevails,  when  such  evidence  is  offered  to 
establish  the  liability  or  right. ^ 

§  616.*  The  probable  ^vant  of  competent  knoivledge  in  the  decla-  ^  551 
rant  is  the  reason  generally  assigned  for  rejecting  evidence  of 
reputation  or  common  fame,  in  the  matters  of  mere  private  right. 
"  Evidence  of  reputation  upon  general  points  is  receivable,"  said 
Lord  Kenyon,  "  because,  all  mankind  being  interested  therein,  it 
is  natural  to  suppose,  that  they  may  be  conversant  with  the  subjects, 
and  that  they  should  discourse  together  about  them,  having  all  the 
same  means  of  information.  But  how  can  this  apply  to  private 
titles,  either  with  regard  to  particular  customs,  or  private  prescrip- 
tions ?  How  is  it  possible  for  strangers  to  know  anything  of  what 
concerns  only  private  titles  ?"  ^  It  may  not  on  all  occasions  be  an 
easy  matter  to  distinguish  between  public  and  private  rights,  and 
some  few  of  the  cases  cited  above  in  illustration  of  the  subject,  may 
possibly  be  considered  to  rest  on  somewhat  doubtful  reasoning. 
Still,  the  general  rule  of  law  cannot  be  disputed;  namely,  that 
if  the  matter  in  question  be  of  a  public  or  general  nature, — that  is, 
if  it  be  interesting  to  the  community  at  large,  or  even  to  a  com- 
paratively small  portion  of  the  community,  such,  for  example,  as 
the  inhabitants  of  a  parish,  a  town,  or  a  manor, — it  falls  within  the 
exception  by  which  evidence  of  reputation  is  admitted  ;  whereas,  if 


1  R.  r.  Bedfordshire,   4  E.   &  B.   535;  overruling  K.   v.  Wavertree,  2  M.  & 
Rob.  353,  and  confirming  R.  v.  Cotton,  3  Camp.  444. 

^  See  Prichard  v.  Powell,  19  Q.  B.  599,  per  Patteson,  J. 

^  See  Drinkwater   v.  Porter,   7  C.   &  P.   181,   per  Coleridge,   J.;    and   post, 
§  620.  *  Gr.  Ev.  ^  137,  in  part. 

*  More  wood  v.  Wood,  14  East,  329,  n. 

(3413) 


546     REPUTATION  AS  TO  PARTICULAR  FACTS  INADMISSIBLE.    [PAET  II. 

it  have  no  connexion  with  the  exercise  of  any  public  right,  or  the 
discharge  of  any  public  duty,  or  with  any  other  subject  of  general 
interest,  it  falls  within  the  ordinary  rule  by  which  hearsay  evidence 
is  excluded. 


§  617.'  The  necessity  for  competent  knowledge  in  the  declarant  I  552 
may  serve  to  explain  and  reconcile  what  is  said  in  the  books  respect- 
ing the  inadmissibility  of  rejyutation  in  regard  to  particular  facts. 
Upon  general  points,  as  we  have  seen,  such  evidence  is  receivable, 
because  of  the  general  interest  which  the  community  have  in  them; 
but  particular  facts,  not  being  equally  notorious,  may  be  misrepre- 
sented, or  misunderstood,  and  may  have  been  connected  with  other 
facts,  by  which,  if  known,  their  effect  might  be  limited  or  explained. 
Reputation  as  to  the  existence  of  such  particular  facts  is  therefore 
rejected.  Thus,  if  the  question  be  whether  a  road  be  public  or 
private,  declarations  of  old  persons  since  dead,  that  they  have  seen 
repairs  done  upon  it,  will  not  be  admissible;^  neither  can  evidence 
be  received  that  a  deceased  person  planted  a  tree  near  the  road,  and 
stated  at  the  time  of  planting  it  that  his  object  was  to  show  where 
the  boundary  of  the  road  was  when  he  was  a  boy.^  So,  proof  of 
old  persons  having  been  heard  to  say  that  a  stone  was  erected,  or 
boys  whipped,  or  cakes  distributed,  at  a  particular  place,  will  not  be 
admissible  as  evidence  of  boundary;*  and  where  the  question  was 
whether  a  turnpike  stood  within  the  limits  of  a  town,  though  evi- 
dence of  reputation  was  received  to  show  that  the  town  extended 
to  a  certain  point,  yet  declarations,  by  old  people,  since  dead,  that 
formerly  houses  stood  where  none  any  longer  remained,  was  re- 
jected, on  the  ground  that  these  statements  were  evidence  of  a  par- 
ticular fact.^  So,  also,  if  the  existence  and  amount  of  a  parochial 
modus  be  in  issue,  hearsay  evidence  of  the  payment  of  a  specific 
sum  in  lieu  of  tithes  by  a  deceased  occupier  will  be  inadmissible; 
though  general  evidence  of  reputation,   that  it  has  always  been 


'  Gr.  Ev.  §  138,  in  part. 

2  Per  Patteson,  J.,  in  R.  v.  Bliss,  7  A.  «fe  E.  552. 
•^  R.  V.  Bliss,  7  A.  &  E.  550. 

♦  Per  Coleridge,  J.,  in  R.  v.  Bliss,  7  A.  &  E.  556. 

^  Ireland  v.  Powell,  per  Chambre,  J.,  Pea.   Ev.   16,    cited  by  "Williams,   J. 
in  R.  V.  Bliss,  7  A.  &  E.  555. 

(3414) 


CHAP.  VIII.]  STATEMENTS  BY  PERAMBULATORS.  547 

customary  to  pay  that  sum  for  all  the  lands  in  the  parish,  will  be 
received.' 

§  618.  Again,  where  the  question  was  whether  a  certain  place  ?  553 
was  parcel  of  a  particular  parish,  an  old  book  containing  entries  by 
a  deceased  churchwarden,  not  charging  himself,  but  relating  to  the 
repairs  of  a  chapel  alleged  to  belong  to  the  place  in  question,  was 
held  to  be  inadmissible;'"  and  the  same  ruling  has  prevailed,  where 
entries  in  parish  books,  which  recorded  the  fact  that  perambulations 
had  taken  a  particular  line,  were  tendered  in  evidence.'^  Still,  it 
has  been  usual  to  admit  evidence  of  what  old  persons,  since  de- 
ceased, who  accompanied  the  perambulators,  have  been  heard  to 
say  upon  such  occasions;*  because  the  custom  of  perambulating 
parishes  having  long  received  high  judicial  sanction  as  a  legitimate 
mode  of  recording  boundaries,^ — and  the  fact  of  a  perambulation 
having  taken  place  being  considered  in  itself  evidence  of  the  exer- 
cise of  a  right,"* — it  follows  that  statements  made  by  perambulators 
may  be  regarded  as  declarations  accompanying  acts,  which,  on 
grounds  already  explained,'  will  be  admissible  in  evidence,  provided 
they  are  not  confined  to  particular  circumstances.* 

§  619.  The  courts  now  hold, — contrary  to  a  doctrine  which  for-  ^  554 
merly  prevailed," — that  proof  of  the  exercise  of  the  right  claimed 
within  the  period  of  living  memory,  is  not  an  essential  condition  of 
the  I'eception  of  evidence  of  reputation  ;  though,  of  course,  the 
absence  of  such  proof,  in  cases  where  the  nature  of  the  subject 
admits  of  its  production,  will  materially  afPect  the  value  of  hearsay 


'  Harwood  v.  Sims,  Wightw.  112,  more  fully  reported  and  explained' in 
Moseley  v.  Davies,  11  Price,  162,  1G9— 172;  Chatfield  v.  Fryer,  1  Price,  253; 
Garnons  v.  Barnard,  1  Anstr.  298;  3  Eag.  &  Y.  380.  S.  C. ;  Wells  v.  Jesus 
College,  7  C.  &  P.  284;  Deacle  v.  Hancock,  McClel.  8.5;  13  Price,  226,  S.  C. 
See,  also,  Crease    v.  Barrett,  1  C.  M.  &  R.  919,  930;  5  Tyr.  458,  472,  S.  C. 

^  Cooke  r.  Banks,  2  C.  &  P.  478,  per  Abbott,  C.  J. 

^  Taylor  v.  Devey,  7  A.  &  E.  409,  414. 

*  Weeks  v.  Sparke,  1  M.  &  Sel.  687,  per  Ld.  Ellenborough,  and  689,  per  Le 
Blanc,  J.  5  Taylor  v.  Devey,  7  A.  &  E.  415. 

8  Weeks  v.  Sparke,  1  M.  &  Sel.  687,  689. 

^  Ante,  U  583—588.  8  j  pj^   y,^,  o^. 

"  Per    Buller,   J.,    in    Morewood    r.  Wood,  14    East,    330,    n.  ;   Weeks   v. 
Sparke,  1  M.  &  Sel.  688,  689,  per  Le  Blanc,  J,,  and  690,  per  Dampier,  J. 
14   LAW  OF  EVID. — V.  II.  (3415) 


548  REPUTATION  EVIDENCE  AGAINST  PUBLIC  RIGHTS.       [PART  II. 

when  received.'  Neither  is  it  necessary  that  the  opinions  of  de- 
ceased persons,  Avhich  are  tendered  as  evidence  of  common  fame, 
should  appear  to  rest  on  reputation  derived  from  others,  or  should 
have  been  expressed  in  the  course  of  a  transaction  relating  to  a 
question  of  reputation;  and,  therefore,  on  an  issue  whether  or  not 
a  lane  in  a  certain  hamlet  was  a  common  highway,  a  paper  signed 
by  several  inhabitants  of  the  hamlet,  since  dead,  stating  that  the 
lane  was  not  a  highway,  was  received  as  slight  evidence  of  reputa- 
tion, although  it  had  been  drawn  up  at  a  public  meeting,  which  had 
been  convened  for  the  sole  purpose  of  considering  the  propriety  of 
repairing  the  road,  and  although  the  opinions  expressed  in  the  docu- 
ment did  not  appear  to  have  been  founded  on  reputation  received 
from  others.'"* 


§  620.^  It  may  further  be  observed,  that  reputation  is  evidence  §  555 
as  well  against  a  public  right  as  in  its  favour  ;  and  this,  too, 
whether  the  evidence  consist  of  declarations  which  expressly 
negative  the  right,  or  set  up  an  inconsistent  claim,  or  simply  omit 
all  mention  of  the  right  on  some  occasion,  when  a  notice  of  it 
might  be  reasonably  expected.  Thus,  where  the  question  was, 
whether  a  landing-place  was  public  or  private  property,  the  declara- 
tions of  ancient  deceased  persons,  that  it  was  the  private  landing- 
place  of  the  party  and  his  ancestors,  were  held  admissible,  the 
learned  judge  remarking,  that  no  distinction  could  be  drawn  between 
the  evidence  of  reputation  to  establish,  and  that  to  disparage,  a 
public  right.*  So,  where  the  object  was  to  negative  the  existence 
of  a  particular  manorial  custom,  the  court  was  strongly  inclined 
to  hold,— though  it  became  unnecessary  to  decide  the  point, — that 
an  -ancient  deed,  made  between  the  lord  of  the  manor  and  a  great  , 
many  of  the  copyholders,  in  which  the  latter  claimed,  and  the 
former  admitted  and  confirmed,  what  they  mutually  conceived  to  be 


1  Crease  r  Barrett,  1  C.  M.  &  R.  919,  930;  5  Tjt.  458,  S.  C;  Ld.  Dun- 
raven  V.  Llewellyn,  15  Q.  B.  791,  809;  E.  v.  Sntton,  8  A.  &  E.  52.'^,  n.  c  ; 
Curzon  v.  Loraax,  5  Esp.  60,  per  Ld.  Ellenborough  ;  Steel  v.  Prickett,  2 
Stark.  E.  46G,  per  Abbott,  C.  J. ;  Eoe  v.  Parker,  5  T.  R.  32,  per  Grose,  J. 

2  Barraclongh  v.  Johnson,  8  A.  &  E.  99,  108. 

3  Gr.  Ev.  ?  140,  in  part. 

*  Drinkwater  v.  Porter,  7  C.  &  P.  181,  per  Coleridge,  J. 

(3416) 


CHAP.  VIII.]        DOCUMENTARY  EVIDENCE  OF  REPUTATION — MAPS.      549 

the  immemorial  customs  of  the  manor,  but  which  deed  omitted  all 
mention  of  the  particular  custom  in  question,  was  strong  evidence 
of  reputation  to  show  that  it  did  not  exist  at  that  day,  and  that 
the  subsequent  usage  relied  upon  in  support  of  it  was  referable  to 
usurpation,  and  not  to  right.' 

§  G21.-  It  will  have  been  seen  from  several  of  the  cases  cited  ^  ^^^^' 
in  this  chapter,  that  oral  declarations  are  not  the  sole  medium  of 
proving  traditionary  reputation  in  matters  of  public  and  general 
interest ;  and, '  indeed,  the  principle  of  the  exception  applies 
equally  to  documentai'y  evidence,  and  to  all  other  kinds  of  proof 
denominated  hearsay.  Thus  deed,^  leases,*  and  other  private 
documents  have  been  admitted,  as  declaratory  of  the  public  matters 
recited  in  them.  Even  copies  and  abstracts  of  old  deeds  and  wills' 
have  occasionally  been  used  for  the  same  purpose,  but  these  are  not 
in  themselves  evidence  of  reputation,  being  merely  admissible  as 
secondary  evidence  of  the  original  instruments.  It  follows,  there- 
fore, that  no  such  document  can  in  strictness  be  received  at  all, 
without  some  proof  being  furnished  of  the  former  existence  and 
present  loss  of  the  originals."^ 

§  622.  How  far  majis,  showing  the  boundaries  of  counties,  I  557 
towns,  parishes,  or  manors,  will  be  admissible,  is  a  question 
respecting  which  some  doubts  exist.  If  such  maps  are  not  proved 
to  have  been  prepared  by  persons  who  were  deputed  to  make 
them  by  some  one  interested  in  the  question,  or  who  themselves 
appear  to  have  had  some  knowledge  of  their  own  on  the  subject, 

iM.  of  Anglesey  t).Ld.  Hatherton,  10  M.  &  W.  218,  239—241,  244.  See 
D.  of  Portland  v.  Hill,  2  Law  Kep.,  Eq.  765.  '•'  Gr.  Ev.  1 139,  in  part. 

•''  Curzon  v.  Lomax,  5  Esi).  60,  per  Ld.  Ellenborough  ;  Brett  v.  Beales,  M. 
&  M.  416,  per  Ld.  Tenterdcn. 

*Plaxtonr.  Dare,  10  B.  &  C.  17;  1  M.  &.  R.  1,  S.  C. ;  Barnes  v.  Mawson, 
1  M.  &  Sel.  78,  79  ;  M.  of  Anglesey  v.  Ld.  Hatherton,  10  M.  &  W.  218  ;  D. 
^of  Beaufort  v.  Smith.  4  Ex.  R.  471,  472,  per  Parke,  B. 

*  See  ShreAvsbury  Peer.,  7  H.  of  L.  Cas.  11,  12  ;  Braye  Peer.,  6  CI.  &  Fin. 
757—767. 

^  See  and  compare  Doe  r.  Skinner,  3  Ex.  R.  84  ;  Doe  v.  Whitcombe,  6  Ex. 
R.  601  ;  S.  C.  in  Dom.  Proc.  4  H.  of  L.  Cas.  425;  Perth  Peer.,  2  H.  of  L. 
Cas.  865  ;  and  D.  of  Devonshire  v.  Neill,  2  L.  R.  Ir.  132,  149,  167,  per 
Palles,  C.  B. 

(3417) 


550  MAPS — COURT  ROLLS — PRESENTMENTS.  [PART  II. 

or  who  at  least  are  shown  to  have  been  in  some  way  connected 
with  the  district,  so  as  to  make  it  probable  that  they  possessed 
the  requisite  information,  they  cannot  be  received,  whatever  their 
age  or  apparent  accuracy  may  be/  If,  however,  proof  be  forth- 
coming that  they  have  been  either  made  or  recognised  by  persons 
having  adequate  knowledge,  they  would  seem,  on  principle,  to  be 
valid  evidence  of  reputation.  Accordingly,  upon  the  trial  of  an 
indictment  against  a  parish  for  the  non  repair  of  a  highway,  where, 
in  order  to  show  that  the  road  in  question  was  not  within  the 
parish,  a  map  was  produced  which  had  been  made  some  thirty 
years  before  by  a  surveyor,  from  information  derived  from  an  old 
parishioner,  who  had  pointed  out  to  him  the  boundaries,  Mr. 
Justice  Erskine  held,  that,  if  proof  could  be  given  of  the  old 
man's  death,  the  map  would  be  admissible  as  evidence  of  reputa- 
tion, though  it  came  from  the  chest  of  the  parish  indicted.^  On 
another  occasion,  also,  maps  appear  to  have  been  received  as  public 
documents  f  but  in  an  older  case,  where,  in  order  to  prove  that  the 
locus  in  quo  vpas  a  highway,  a  copper-plate  map,  which  purported 
on  its  face  to  have  been  taken  by  the  direction  of  some  former 
churchwardens,  and  which  it  was  proposed  to  prove  was  generally 
received  by  the  parish  as  authentic,  was  rejected  by  Ld.  Kenyon, 
who  observed,  that  "  it  would  be  equally  improper  to  admit  it,  as 
to  admit  a  plan  taken  by  the  lord  of  the  manor,  who  might  thereby 
crush  and  destroy  the  estate  of  his  tenants."*  It  does  not  appear 
in  this  case  that  the  map  was  an  ancient  one,  or  that  the  church- 
wardens, by  whose  direction  it  was  drawn,  were  dead,  and  conse- 
quently the  decision  is  of  the  less  authority. 

§  623.  Again,  copies  of  court  rolls,  and  especially  presentments    g  5G8 
in  manor  courts,'^  stating  the  customs  or  boundaries  of  a  manor, — 
depositions  of    conventionary  tenants  of    a    manor,    taken    in    an 


'  Hammond  v.   Bradstreet,  23  L.   J.,   Ex.   332,  per  Ex.   Ch.;  10  Ex,  R.  390, 
S.  C.     See  Pipe  v.  Fulcher,  28  L.  J.,  Q.  B.  12  ;  1  E.  &  E.  Ill,  S.  C. 

2  R.  V.  Milton,!  C.  &  Kir.  58. 

'  Alcock  V.  Cook,  per  Tindal,  C.  J.,  cited  1  Ph.  Ev.  2.'51,  n.  1. 

*  Pollard  V.  Scott,  Pea.  R.  19. 

^  Evans  v.   Rees,   10  A.   &  E.   151 ;  Roe  v.   Parker,  5  T.  R.  26  ;  Arundell  v. 
Ld.  Falmouth,  2  M.  &  Sel,  441  ;  Damerell  v.  Protheroe,  10  Q.  B.  20. 

(3418) 


CHAP.  VIII.]  VERDICTS — JUDGMENTS — DECREES.  551 

authorised  inquiry,  and  representing  the  rights  of  the  Icrd/ — and 
other  similar  documents,  have  been  admitted  as  evidence  of  repu- 
tation;" though  unless,  it  can  be  satisfactorily  proved,  or  at  least 
reasonably  inferred,  that  the  proceedings  were  conducted  in  a  legal 
and  regular  manner,  it  will  seldom  be  prudent  to  run  the  risk  of  a 
new  trial  by  tendering  such  evidence.' 

§  624.  It  has  often  been  said  that  verdicts  of  juries,  and  judg-  I  559 
ments,  decrees,  and  orders  of  courts  of  competent  jurisdiction,  are 
evidence  of  reputation;^  and  possibly,  when  juries  were  summoned 
de  vicineto,  and  were  consequently  assumed  to  be  acquainted  with 
the  subject  in  controversy,^  this  may  have  been  a  correct  mode 
of  stating  the  ground  on  which  verdicts  were  admitted;  though 
it  never  could  have  been  strictly  accurate  with  respect  to  other 
judicial  documents,  and  though  it  does  not  apply,  at  the  present 
day,  even  to  verdicts.'*  Still,  these  documents,  though  not  repu- 
tation, are  as  good  evidence  as  reputation;'  and  whatever  be  the 
principle  on  which  they  are  admitted,  the  rule  has  been  established 
Ijy  too  many  authorities  to  be  now  questioned,**  that,  in  all  cases, 
involving  matters  of  public  or  general  interest,  wherein  reputation 
is  evidence,  a  verdict  or  a  judgment  upon  the  matter  directly  in 
issue,  though  pronounced  in  a  cause  litigated  between  strangers 
to  the  parties  on  the  record,  is  also  admissible;  not  as  tending  to 
prove  any  specific  fact  existing  at  the  time,  but  as  evidence  of  the 
most  solemn  kind,  of  an  adjudication  by  a  competent  tribunal 
upon  the  state  of  facts  and  the  question  of  usage  at  the  time.' 
Thus,  for  example,  where  a  public  right  of  way  was  in  question, 


1  Crease  v.  Barrett,  1  C.  M.  &  R.  919,  5  Tyr.  458,  S.  C;  Freeman  v. 
Philhpps,  4  M.  &  Sel.  486;  Gee  v.  Ward,  7  E.  &  B.  509. 

'^  See  Evans  v.  Taylor,  7  A.  &  E.  626,  as  explained  in  D.  of  Beaufort  v. 
Smith,  4  Ex.  R.  450;  and  Daniel  v.  Wilkin,  7  Ex.  R.  429. 

3  See  R.  V.  Leigh,  10  A.  &  E.  411.  *  See  post,  ?i  1683. 

*  Pim  V.  Curell,  6  M.  &  W.  254,  per  Alderson,  B. 

*  Evans  v.  Rees,  10  A.  &  E.  153,  per  Patteson  &  Coleridge,  Js. ;  Brisco  v. 
Lomax,  8  A.  &  E.  212,  per  Patteson,  J. 

'  Brisco  V.  Lomax,  8  A.  &  E.  211,  per  Littledale,  J. 

^  Evans  v.  Rees,  10  A.  &  E.  156,  per  Ld.  Denman. 

®  Pim  r.  Curell,  6  M.  &  W.  266,  per  Ld.  Abinger;  D.  of  Devonshire  v. 
Neill,  2  L.  R.  Ir  154,  155,  per  Palles,  C.  B.;  Neill  r.  D.  of  Devonshire, 
L.  R.,  8  App.  Cas   147,  per  Ld.  Selborne,  C,  in  Dom.  Proc.  S.  C. 

(3419) 


552         VERDICTS  AND  JUDGMENTS  EVID.  OF  REPUTATION.         [PART  11. 

the  plaintiff  was  allowed  to  show  a  verdict,  rendered  in  his  own 
favour  against  a  defendant  in  another  suit,  in  which  the  same 
right  of  way  was  in  issue;'  and  it  matters  not  with  respect  to  the 
admissibility,  though  it  may  as  to  the  weight,  of  such  evidence, 
that  the  judgment  has  been  suffered  by  default,  and,  though  of  a 
very  recent  date,  is  not  supported  by  any  proof  of  execution  or  of 
the  payment  of  damages;"  or  even  that  the  verdict,  where  a  verdict 
has  been  obtained,  has  not  been  followed  up  by  any  judgment  or 
decree.^  Neither  is  it  material  whether  the  verdict  be  pronounced 
at  Nisi  Prius,  or  be  the  finding  of  a  jury  summoned  under  a  com- 
mission from  a  Duchy  Court,  or  any  other  special  commission; 
provided  it  can  be  -pi-oved,  or  can  be  inferred  from  the  circum- 
stances, that  the  inquiry  was  a  lawful  one.  * 

§  625.  If,  when  the  record  is  produced,  a  direct  issue  appears  §  5G0 
to  have  been  raised  on  the  right  or  custum  in  controversy,  the 
opponent  will  not  be  entitled  to  show  that  in  fact  no  evidence  was 
given  on  that  issue;  since  the  record  is  conclusive  of  the  fact  of 
such  a  finding,  though  not  of  its  truth  as  between  other  parties.*^ 
If  the  record  contains  no  direct  issue  on  the  custom,  the  party 
producing  it  must  furnish  some  evidence  to  show  that  the  custom 
was  really  in  question;  for,  otherwise,  the  mere  verdict  would 
prove  nothing. *"  In  the  case  of  the  Earl  of  Carnarvon  v.  Villebois, 
which  was  an  action  by  the  lord  of  a  manor  against  a  copyholder 
for  trespassmg  on.  his  free  warren,  an  ancient  judgment  on  a  quo 
warranto  information  filed  by  the  Attorney -General  against  a  former 
lord,  in  which  the  defendant  pleaded,  and  the  Attorney-General 
confessed,  a  prescriptive  title  to  the  free  warren  as  appurtenant  to 
the  manor,  was  received  in  evidence  for  the  plaintiff,  as  being  the 
judgment  of  a  competent  court  upon  a  matter  of  a  public  nature, 
which  concerned  the  Crown  and  the  subject.  The  court  observed, 
that  "  it  was  admissible  on  the  same  footing  as  an  allowance  before 
the  Justices  of  Eyre,  an  inquisition  post  mortem,  or  an  inquisition 


'  Eeed  v.  Jackson,  1  East,  355.     See  Petrie  r.  Nuttall,  11  Ex.  R.  569. 
2  Ld.  Carnarvon  v.  Villebois,  13  M.  &  W.  313,  329,  332.     See  R.  v.  Bright- 
side  Bierlow,  13  Q.  B.  933. 

■^  Brisco  V.  Lomax,  8  A.  &  E.  198;  3  N.  &  P.  338,  S.  C.  *  Id. 

^  Reed  v.  Jackson,  1  East,  355. 

«  Laybourn  r.  Crisp,  4  M.  &  W.  325,  326,  per  Ld.  Abinger. 

(3420) 


CHAP.  VIII.]       DECREES  AND  ORDERS  EVID.  OF  REPUTATION.  553 

issuing  out  of  the  Court  of  Exchequer  to  ascertain  the  extent  of  the 
Crown  lands."  ' 

§  626.  Decrees  and  orders  of  all  conipetent  tribunals  stand  upon  ^  561 
the  same  footing  as  verdicts;^  and,  therefore,  orders  of  the  com- 
missioners of  sewers  requiring  landowners  to  repair  sea-walls,  will, 
on  an  issue  respecting  the  liability  of  a  party  to  make  such  repairs, 
be  evidence  as  adjudications  by  a  court  of  competent  jurisdiction; 
and  the  fact  that  they  have  been  duly  executed  and  acted  upon 
will  be  presumed,  if  they  are  of  an  ancient  date. ^  To  render  decrees 
of  the  old  Court  of  Chancery  admissible,  it  is  unnecessary  to  put 
in  the  depositions  to  which  they  refer;  because,  in  equity,  the 
judge  must  have  collected  the  questions  in  dispute  from  the  bill 
and  anwer  only.*  Still,  a  decree,  to  be  evidence,  must  be  final; 
and  mere  inierlocutory  orders,  not  involving  any  judgment  upon 
the  rights  of  the  parties,  cannot  be  received.^  So  anxious  are  the 
courts  to  confine  this  species  of  evidence  within  strict  limits,  that 
they  have  rejected  an  award  in  a  suit  inter  alios,  though  the  cause 
was  referred  by  order  of  the  judge  at  Nisi  Prius.*^  It  seems 
scarcely  necessary  to  add,  that  no  mere  claim  to  the  possession  of 
lands,  not  followed  by  judgment,  will  be  admissible  in  evidence,^ 
nor  can  any  verdict,  judgment,  decree,  or  order,  be  received,  if  it 
appear  that  the  parties  pronouncing  it  were  acting  without  legal 
authority.** 

§  627.  Although    judgments    and    decrees,   when    tendered    as    I  562 
evidence  of  reputation,  must  in  general  be  proved  either  by  pro- 
ducing the  originals,  or  by  examined,  or  now  by  office,^  copies,  yet 
occasionally  a  copy  of  a  less  authentic  character  will   be  received, 

'  13  M.  &  W.  313,  331,  per  Parke,  B. 

2  See  Laybourn  c.  Crisp,  4  M.  &  W.  326,  per  Parke,   B. ;  D    of  Devonshire 
V.  Neil],  2  L.  R.  Ir.  153,  per  Palles,  C.  B. 

^  R.  V.  Leigh,  10   A.  &   E.  398,  D.  of  Devonshire   v.  Neill,  2   L.  R.  Ir.  132, 
152,  153. 

*  Laybourn  v.  Crisp,  4  M.  &  W.  320,  326,  327.     It  seems  tliat  the  deposi- 
tions may  be  read  by  the  opposite  party  as  his  evidence,  id. 

5  Pim  V.  Currell,  6  M.  &  W.  234,  265—267. 

«  Evans   r.   Rees,   10   A.  &   E.    151;  2   P.  &   D.   627,  S.  C. ;  R.  v.  Cotton,  3 
Camp.  444:  Wenman  r.  Mackenzie,  5  E.  &  B.  447. 

■  D.  of  Devonshire  v.  Neill,  2  L.  R.  Ir.  132,  165,  166,  per  Palles,  C.  B. 

8  Rogers  r.  Wood,  2  B.  &  Ad.  245. 
,    9  Rules  of  Sup.  Ct.,  1883,  Ord.  XXXVII. ,  R.  4,  cited  post,  §  1538. 

(3421) 


554  Df:CLx\.IlATIONS  3IADE  ANTE  LITEM  MOTAM.  [pART  II. 

provided  it  has  been  dealt  with  by  the  party  against  whom  it 
is  tendered,  or  by  those  through  Avhom  he  claims,  either  as  an 
authentic  copy,  in  which  case  it  will  be  admissible  as  secondary 
evidence  or  as  a  paper  containing  a  true  statement  of  the  custom  or 
other  subject  matter  of  reputation  in  dispute,  in  which  case  it  will 
be  received  as  primary  proof.  For  instance,  in  Price  v.  Woodhouse,' 
which  was  an  action  of  trespass  by  a  copyholder  against  the  lord 
of  a  manor,  where  the  question  at  issue  turned  on  the  existence  or 
non-existence  of  a  particular  manorial  custom,  two  documents  were 
tendered  on  behalf  of  the  plaintifP.  The  first  purported  to  be  a 
copy  of  an  old  decree  of  the  Court  of  Chancery  in  a  suit  between 
a  copyholder  and  the  lord,  establishing  the  cus'tom,  and  the  court 
held  that,  inasmuch  as  the  document  had  been  found  among  the 
papers  of  a  former  deceased  lord,  that  fact  furnished  some  evidence 
of  its  having  been  recognised  as  a  true  copy,  and  they  conse- 
quently allowed  it  to  be  read  as  secondary  evidence  of  the  decree, 
proof  having  been  given  of  an  ineffectual  search  for  the  original. 
They  added,  however,  that  it  was  inadmissible  as  primary  evidence, 
since  the  mere  circumstance  of  its  having  been  deposited  among 
the  papers  of  the  deceased  lord  was  not  such  a  dealing  with  it  as  to 
be  equivalent  to  an  admission,  upon  the  lord's  part,  that  it  con- 
tained a  true  account  of  the  customs  of  the  manor.  The  second 
document  tendered  in  evidence  was  an  office  copy"  of  another  decree, 
and  as  there  was  some  evidence  to  show  that  this  had  been  given 
to  a  witness  by  the  lord  as  proof  of  the  customs  of  the  manor,  the 
court  regarded  it  in  the  light  of  an  admission,  and  held  that  it  was 
admissible  as  primary  evidence  of  those  customs.  • 

§  028.^  It  now  becomes  necessary  to  consider  an  important  ?  ^63 
qualification  of  the  exception  under  discussion,  which  is,  that 
declarations,  to  be  admissible  as  evidence  of  repidation,  7uust  have 
(>een  made  before  any  controversy  arose  touching  the  matter  to  ivhich 
they  relate;  or,  as  it  is  usually  expressed,  a?i<e  litem  motam.  As 
this  qualification  is  not  confined  to  matters  of  public  and  general 
interest,  but  equally  governs  the  admissibility  of  hearsay  evidence 
in  matters  of  pedigree,  it  will  be  convenient  to  illustrate  its 
operation    by   referring  indiscriminately  to  both  these  classes  of 


1  3  Ex.  E.  G16.  ^  See  post,  §  1538.  ^  Gr.  Ev.  §  131,  in  part. 

(3422) 


CHAP,  VIII.]        LIS  MOTA — COMMENCEMENT  OF  CONTROVERSY.  555 

cases.  Now,  the  ground  on  which  the  declarations  of  deceased 
persons  are  admitted  at  all,  is,  that  they  are  the  natural  effusions 
of  a  party  who  is  presumed  to  know  the  real  facts,  and  to  speak 
upon  an  occasion  when  his  ruind  stands  in  an  even  position, 
without  any  temptation  to  exceed  or  fall  short  of  the  truth.'  But 
no  man  is  presumed  to  be  thus  indifferent  in  regard  to  matters 
in  actual  controversy  ;  for  when  the  contest  has  begun,  people 
generally  take  part  on  the  one  side  or  the  other;  their  minds  are 
in  a  ferment;  and,  if  they  are  disposed  to  speak  the  truth,  facts  are 
often  seen  by  them  through  a  false  medium.  To  avoid,  therefore, 
the  mischiefs  which  would  otherwise  result,  all  ex  parte  declara- 
tions, even  those  upon  oath,  are  rejected,  if  they  can  be  referred 
to  a  date  subsequent  to  the  beginning  of  the  controversy." 

§  629.^  This  rule  of  evidence  was  familiar  in  the  Roman  law;  ^  ^^'^ 
but  the  term  Us  mota  was  there  applied  strictly  to  the  com- 
mencement of  the  action,  and  was  not  referred  to  any  earlier 
period  of  the  dispute.*  But  in  our  law  the  term  lis  is  taken  in 
the  classical^  and  larger  sense  of  controversy;  and  by  lis  mota  is 
understood  the  commencement  of  the  controversy,  and  not  the 
commencement  of  the  suit.*^  The  commencement  of  the  contro- 
versy was,  at  one  time,  further  defined  by  Mr.  Baron  Alderson  to  be 
"  the  arising  of  that  state  of  facts,  on  which  the  claim  is  founded, 
without,  anything  more  ;  ^  but  this  dictum, — though  afterwards 
upheld   by    Lord    Cottenham,^ — has    since    been    overruled,**  and 

1  Per  Ld.  Elclon,  in  Whitelocke  v.  Baker,  13  Ves.  514;  R.  v.  Cotton,  3 
Camp.  446,  per  Dampier,  J. 

2  Berkeley  Peer.,  4  Camp.  401,  409,  413;  Monkton  v.  Att.-Gen.,  2  Russ.  & 
Myl.  160,  161;  Richards  v.  Bassett,  10  B.  &  C.  657. 

^  Gr.  Ev.  g  131,  in  part. 

*  Lis  est,  lit  primum  in  jus,  vel  in  Judicium  ventum  est;  antequam  in  judicium 
veniatur,  controversia  est,  non  Us.  Cujac.  Op.  Posth.  torn  5,  col.  193,  B.,  &  col. 
162,  D.  Lis  inchoatn  est  ordinata  per  liheUum,  et  satisdationem,  licet  non  sit 
lis  contesta.  Corpus  Juris  Glossatum,  tom.  1,  col.  553,  ad  Dig.  lib.  iv.  tit.  6, 
1.12.     Lis  mota  censetur,  ctiamsi  solus  actor  egerit.     Calv.  Lex.,  Verb.  Lis  mota. 

^  "  Philosophi  setatem  in  litibus  conterunt." — ClC;  cited  by  Lawrence,  J., 
in  Berkeley  Peer.,  4  Camp.  411. 

^  Per  Sir  J.  Mansfield,  in  Berkeley  Peer.,  4  Camp.  417;  Monkton  v.  Att.- 
Gen.,  2  Russ.  &  Myl.  161. 

'  Walker  v.  Beauchamp,  6  C.  &  P.  552,  561. 

8  Davies  v.  Lowndes,  7  Scott,  N.  R.  198;  6  M.  &  Gr.  517,  S.  C. 

8  Shedden  v.  Att.-Gen.   &  Patrick,   30  L.  J.,   Pr.   &  Mat.   217;   2  Swab.  & 

(3423) 


556  DOCTRINE  OF  LIS  MOT  A,  WHAT  IT  EXCLUDES.  f  PART  II. 

it  is  now  decided,  that  "  there  must  be,  not  merely  facts  which 
may  lead  to  a  dispute,  but  a  lis  mota,  or  suit,  or  controversy 
preparatory  to  a  suit,  actually  commenced,  or  dispute  arisen,  and 
that  upon  the  very  same  pedigi'ee  or  subject-matter  which  con- 
stitutes the  question  in  litigation."  ' 


§  G30.  It  follows  from  the  above  explanation  of  lis  mota,  first,  §  565 
that  declarations  will  not  be  rejected,  in  consequence  of  their 
having  been  made  ivith  the  express  vieiu  of  preveniiyig  disputes; 
secondly,  that  they  are  admissible,  if  no  dispute  has  arisen, 
though  made  in  direct  support  of  the  title  of  the  declarant-,  and, 
thirdly,  that  the  mere  fact  of  the  declarant  having  stood,  or 
having  believed  that  he  stood,  in  pari  jure  with  the  party  relying 
on  the  declaration,  will  not  render  his  statement  inadmissible. 
In  support  of  the  first  proposition,  the  Berkeley  Peerage  case 
may  be  referred  to,  where  the  judges  unanimously  held, —  in  con- 
formity with  an  earlier  opinion  expressedby  Lord  Mansfield,^ — that 
an  entry  made  by  a  father  in  any  book,  for  the  express  purpose  of 
establishing  the  legitimacy  of  his  son  at  the  time  of  his  birth,  in 
case  the  same  should  be  called  in  question,  will  be  receivable  in 
evidence,  notwithstanding  the  professed  view  with  which  it  was 
made.^  This  doctrine  has  since  been  sanctioned  by  Lords 
Brougham*  and  Cottenham  in  England,^  and  by  Lord  St.  Leo- 
nards in  Ireland,''  and  may  now  be  considered  as  established  law 
in  both  countries.  A  leading  decision  in  support  of  the  second 
proposition  is  the  case  of  Doe  v.  Davies,^  where  the  court  observed, 
that   although  a  feeling  of    interest  will  often  cast    suspicion   of 


Trist.  170,  S.  C;  Eeilly  v.  Fitzgerald,  6   Ir.   Eq.   R.  33o,  344—349,   1  Drury, 
Ch.  R.  120,  140—155,  S.  C. 

1  Davies  v.  Lowmles,  7  Scott,  N.  R.  214,  per  Ld.  Denman;  G  M.  &  Gr. 
528,  S.  C;  Shedden  v.  Att.-Gen.  &  Patrick,  30  L.  J.,  Pr.  &  Mat.  217;  2 
Swab.  &  Trist,  170,  S.  C;  Berkeley  Peer.,  4  Camp.  401;  Slaney  r.  Wade, 
1  Myl.  &  Cr.  338,  356.  See  Butler  v.  Movintgarret,  7  H.  of  L.  Cas.  633; 
Frederick  v.  Att.-Gen.,  44  L.  J..  Pr.  &  Mat.  1;  Law  Rep.,  3  P.  &  D.  270,  S.  C. 

2  Goodright  v.  Moss,  2  Cowp.  591.  ^  4  Camp.  418. 
*  Monkton  v.  Att.-Gen.,  2  Russ.  &  IMyl.  147,  160,  161,  164. 

^  Slaney  v.  AVade,  1  Myl.  &  Cr.  338. 

«  Reilly  v.  Fitzgerald,  6  Jr.  Eq.  R.  335,  344—349. 

'  10  Q.  B.  .314,  325. 

(3424) 


CHAP.  VIII.]     DOCTRINE    OF   LIS    MOTA,    WHAT    IT    EXCLUDES.  557 

declarations,  it  has  never  been  held  to  render  them  inadmissible. 
The  third  proposition  is  equally  clear  law  :  for,  although  one 
peerage  case  appears  at  first  sight  to  throw  some  doubt  upon  the 
subject,'  yet  it  is  highly  probable  that  the  pedigree  was  there 
rejected,  not  as  having  been  made  by  a  party  while  standing  in 
the  same  situation  as  the  claimant,  but  as  having  been  concocted 
by  such  person  in  direct  contemplation  of  himself  laying  claim  to 
the  dignity. 


§  631.  But  even  if  the  case  be  not  susceptible  of  this  explana-  ^  566 
tion,  a  single  isolated  decision  can  scarcely  controvert  a  rule  of  law, 
which  has  been  sanctioned  and  acted  upon  by  numerous  judges,^ 
and  which  is  so  founded  on  reason,  that  a  contrary  doctrine  would 
go  far  towards  excluding  all  evidence  of  reputation.  For  in- 
stance, in  cases  of  public  and  general  interest,  the  rejection  of 
such  evidence  would  be  wholly  inconsistent  with  the  rule,  which 
requires  the  statement  to  have  been  made  by  some  person  having 
competent  knowle(3ge  of  the  subject;^  and  in  cases  of  pedigree, 
though  the  result  of  excluding  declarations  of  persons  in  pari 
jure  would  not  be  equally  mischievous,  it  would  fi'equently  have 
the  effect  of  drying  up  sources  of  information,  which  would  be 
highly  valuable  in  the  investigation  of  truth.  In  any  one  of  the 
three  classes  of  declarations  just  mentioned,  it  is  very  possible 
that  the  declarant  may  have  had  some  secret  wish  or  bias,  which 
may  have  induced  him  to  make  a  statement  either  partially  or 
totally  false  ;  but  the  same  observation  might  apply  to  all  evidence 
of  this  nature,  and  its  weight  in  each  particular  case  must  be 
determined  by  the  jury. 

§  632.*  That  clause  of  the  rule  under  consideration,  which  re-    g  567 


'  Zouch  Peer.,  Pr.  Min.  207. 

"^  Moseley  v.  Davies,  11  Price,  162,  179,  per  Graham,  B. ;  Harwood  c.  Sims, 
Wightw.  112  ;  Deacle  v.  Hancock,  13  Price,  236,  237  ;  Monkton  v.  Att.-Gen., 
2  Euss,  &  Myl.  159,  160,  per  Ld.  Brougham  ;  Freeman  v.  Phillipps,  4  M.  & 
Sel.  486,  491,  per  Ld.  Ellenborough  cited  with  approbation  by  Ld.  Lynd- 
hurst,  C.  B.,  in  Davies  v.  Morgan,  1  C.  &  J.  593,  594  ;  Nicholls  v.  Parker,  14 
East,  331,  n.;  Doe  v.  Tarver,  Ry.  &  M.  141,  142,  per  Abbott,  C.  J. 

3  Ante,  II  610,  611.  *  Gr.  Ev.  ^  132,  in  part. 

(3425) 


558  DOCTRINE   OF   LIS    MOTA.  [PART   II. 

quires  that  the  dispute  should  have  related  to  the  particidar  subject 
in  issue,  is  based  on  sound  sense  ;  for,  although  the  existence  of 
such  a  controversy  may  reasonably  be  expected  to  render  turbid  the 
fountain  of  evidence,  the  mere  discussion  of  other  topics,  however 
similar  they  may  be  in  their  general  nature  to  the  real  matter  in 
dispute,  does  not  necessarily  lead  to  the  inference  that  that  matter 
was  controverted,  and  therefore  is  not  deemed  suflficient  to  exclude 
declarations  made  during  that  discussion  as  evidence  of  reputation. 
Thus,  in  a  suit  between  a  copyholder  and  the  lord,  where  the  point 
in  issue  was,  whether  a  certain  customary  fine  was  to  be  assessed 
by  the  jury  of  the  lord's  court,  depositions  taken  in  an  ancient  suit 
against  a  former  lord,  where  the  controversy  turned  on  the  amount 
of  such  fine,  in  which  depositions  the  fine  was  mentioned  as  asses- 
sible  by  the  lord,  were  admitted  as  evidence  to  negative  the  existence 
of  any  custom  for  the  jury  to  interfere.'  In  that  case,  one  of  the 
learned  judges  observed,  that  "  the  distinction  had  been  correctly 
taken,  that  where  the  lis  mota  was  on  the  very  point,  the  declara- 
tions of  persons  would  not  be  evidence  ;  because  you  cannot  be  sure, 
that  in  admitting  the  depositions  of  witnesses,  selected  and  brought 
forward  on  a  particular  side  of  the  question,  who  embark  to  a  certain 
degree  with  the  feelings  and  prejudices  belonging  to  that  particular 
side,  you  are  drawing  evidence  from  perfectly  unpolluted  sources. 
Bat  where  the  point  in  controversy  is  foreign  to  that  which  was 
before  controverted,  there  never  has  been  a  lis  mota,  and,  conse- 
quently, the  objection  does  not  apply."  ^ 


§  633.  It  is  not,  however,  necessary  that  the  former  controversy  §  568 
should  have  been  between  the  same  parties,  or  should  have  related 
to  the  same  property  or  claim,  provided  it  appears  that  the  matters, 
respecting  which  the  declarations  offered  in  evidence  on  the  second 
trial  were  made,  were  in  the  former  dispute  really  under  discus- 
sion ;  and,  therefore,  in  the  Berkeley  Peerage  case, — where  the 
question  before  the  Committee  of  Privileges  respected  the  legiti- 
macy of   the  claimant,  and  this   turned  on  the   fact  whether  his 


1  Freeman  v.  Phillipps,  4  M.  &  Sel.  486. 

=  Id.  497  ,  per  Bayley,  J.     See,   also,   Gee  v.  Ward,   7  E.  &  B.  509  ;    D.  of 
Devonshire  v.  Neill,*2  L.  R.  Ir.  156,  per  Palles,  C.  B. 

(3426) 


CHAP.  VIII.]        DECLARATIONS  MADE  POST  LITEM  MOTAM.  559 

parents,  who  had  gone  through  the  ceremony  af  a  marriage  after 
his  birth,  and  had  subsequently  had  several  children,  had  likewise 
been  privately  married  two  years  before  he  was  born; — a  deposition 
of  the  father,  wherein  he  swore  positively  to  the  fact  of  the  first 
marriage,  was  rejected,  it  having  been  taken  some  years  before,  in  a 
suit  instituted  by  the  claimant  and  three  of  his  brothers  born  before 
the  second  marriage  against  the  other  children  born  after  that  event, 
for  the  purpose  of  perpetuating  the  testimony  of  the  legitimacy  of 
the  former,  who  claimed  in  that  character  to  be  entitled  in  remainder 
to  an  estate  then  held  by  the  father.'  So,  in  the  Sussex  Peerage 
case,  where  the  claimant.  Colonel  d'Este,  was  required  to  prove  that 
his  parents  the  Duke  of  Sussex  and  Lady  Augusta  Murray,  were 
legally  married,  declarations  contained  in  the  Duke's  will  and 
affirming  most  solemnly  the  fact  of  marriage,  as  also  statements 
to  the  same  effect  made  by  his  Royal  Highness  in  conversation, 
were  rejected;  it  appearing  that  some  years  previously  to  such 
declarations  and  statements  being  made,  a  suit  had  been  instituted 
by  the  Crown  to  annul  the  Prince's  marriage,  and  it  not  being 
shown,  as  in  truth  it  could  not  be,  that  that  marriage  was  not 
the  very  marriage  on  which  the  claimant  relied.^ 


§  634.  It  is  now  finally  decided,  that  declarations,  made  after  ^  5(J9 
the  controversy  has  originated,  are  in  all  events  to  be  excluded, 
even  though  proof  be  offered  that  the  existence  of  the  controversy 
was  not  known  to  the  declarant.^  This  rule  may,  no  doubt,  at 
times  operate  oppressively;  but  its  justification,  if  it  caw  be  justi- 
fied, must  rest  on  the  ground,  that,  "  If  an  inquiry  were  to  be  in- 
stituted in  each  instance,  where  the  existence  of  the  controversy 
was  or  was  not  known  at  the  time  of  the  declaration,  much  time 
would  be  wasted,  and  great  confusion  would  be  produced."* 


1  4  Camp.  401.  2  11  CI.  &  Fin.  85,  99—10.3. 

*  Shedden  v.  Att.-Gen.  &  Patrick,  30  L.  J.,  Pr.  &  Mat.  217;  2  Swab.  &  Trist. 
170,  S.  C. 

*  Berkeley  Peer.,  4  Camp.  417,  per  Sir  J.  Mansfield. 

(3427) 


560  HEARSAY  ADMISSIBLE  IX  QUESTIONS  OF  PEDIGREE.      [PAKT  11. 


CHAPTER  IX. 

MATTERS    OF    PEDIGREE, 

§  635.  Questions  of  pedigree  form  the  second  exception  to  ?  571 
the  general  rule  rejecting  hearsay  evidence.  This  exception  has 
been  recognised  on  the  ground  of  necessity;  for  as,  in  inquiries 
respecting  relationship  or  descent,  facts  must  often  be  proved  which 
occurred  many  years  before  the  trial  and  were  known  but  to  few 
persons,  it  is  obvious  that  the  strict  enforcement  of  the  ordinary 
rules  of  evidence  in  cases  of  this  nature  would  frequently  occasion 
a  grievous  failure  of  justice.  Courts  of  law  have  therefore  so  far 
relaxed  these  rules  in  matters  of  pedigree,  as  to  allow  parties  to 
have  recourse  to  traditional  evidence;  often  the  sole  species  of  proof 
which  can  be  obtained.  Still,  it  is  not  considered  safe  to  admit 
such  evidence  without  qualification;  and  though  it  was  long  doubt- 
ful whether  the  declarations  of  servants,  friends,  and  neighbours, 
might  not  be  received,  the  settled  rule  of  admission  is  now  restricted 
to  hearsay  proceeding  from  persons  who  were  de  jure  related  by 
blood  or  marriage  to  the  family  in  question,  and  who,  consequently, 
may  be  supposed  to  have  had  the  greatest  interest  in  seeking,  the 
best  opportunity  for  obtaining,  and  the  least  reason  for  falsifying, 
information  on  the  subject.^ 

§  636.  So  far  as  blood  relations  are  concerned,  no  limitation  in    ^  572 
the  above  rule  has  ever   been   recognised;^    but  with  regard   to 

^  Johnson  v.  Lawson,  2  Bing.  86;  9  Moore,  183,  S.  C. ;  Crease  v.  Barrett, 
1  C.  M.  &  R.  928;  Vowles  v.  Young,  13  Ves.  147,  per  Lcl.  Erskine;  Goodright 
V.  IVfoss,  2  Cowp.  594,  per  Lcl.  Mansfield,  as  explained  by  Ld.  Eldon  in  White- 
locke  t).  Baker,  13  Ves.  514;  Monkton  v.  Att.-Gen.,  2  Russ.  &  Myl.  159,  per 
Ld.  Brougham;  Stafford  Peer.  1825,  Pr.  Min.  p.  4;  Jewell  r.  Jewell,  1  Howard, 
S.  Ct.  R.  231;  17  Pet.  213,  S.  C;  Jackson  v.  Browner,  18  Johns.  37;  Chapman 
V.  Chapman,  2  Conn.  347;  Waldron  r.  Tuttle,  4  New  Hamp.  371. 

*  Davies  V.  Lowndes,  7  Scott,  X.  R.  188,  per  Parke,  B.;  Shrewsbury  Peer., 
7  H  of  L.  Cas.  23,  per  Ld.  Wensleydale. 

(.3428) 


CHAP.  IX.]  ARE  DECLARATIONS  OF  BASTARDS  ADMISSIBLE?  5G1 

relationship  by  affinity,  some  lawyers  used  to  imagine  that  the  rule 
was  confined  to  declarations  by  a  husband  respecting  the  state  of 
his  wife's  family.'  It  is  now  however  distinctly  decided,  that  this 
view  of  the  law  is  too  narrow,  and  that  no  valid  argument  can  be 
urged  against  the  admissibility  of  a  wife's  declarations  concerning 
her  husband's  relatives."  Still,  the  law  will  not  be  further  relaxed, 
even  in  favour  of  statements  made  by  the  wife's  father;'*  and  so 
strictly  has  the  limitation  of  the  rule  been  enforced  in  modern 
times,  that  the  declaration  of  an  illegitimate  member  of  a  family, 
asserting  that  one  of  his  natural  brothers  had  died  without  issue, 
has  been  rejected.*  So,  also,  the  court  has  refused  to  admit  a 
declaration  by  one  brother  that  another  brother  has  had  an  illegi- 
timate son.*^  In  an  older  case,"  where  the  question  was  whether  an 
elder  son,  who  had  taken  possession  of  the  paternal  estates,  and 
conveyed  them  to  one  of  the  litigants,  was  borji  in  wedlock,  his  own 
declaration  that  he  was  a  bastard,  though  made  subsequently  to  the 
conveyance,  was,  after  his  death,  received  by  Mr.  Justice  Le  Blanc. 
The  learned  judge  appears  to  have  considered  this  statement  ad- 
missible, "  as  the  representation  of  one  of  the  family  of  the  degree 
of  relationship  he  bore  to  it;"  but  if  the  case  just  cited  be  law, — as 
it  would  probably  be  deemed  at  the  present  day, — the  decision  can 
scarcely  rest  upon  that  ground,  unless  the  special  circumstances  of 
the  case  be  prayed  in  aid;  and  it  be  contended,  that,  since  the 
defendant's  claim  rested  on  the  legitimacy  of  the  vendor,  he  could 
not  object  to  the  vendor's  declaration,  without  relinquishing  the  only 
pi'op  of  his  title.  Should  this  refined  argument  be  deemed  incon- 
clusive, perhaps  the  admissibility  of  the  declaration  might  be  sus- 
tained, on  the  ground  that  the  cause  turned,  not  only  on  the  con- 
dition of  the  father's  family,  but  on  the  actual  status  of  the  declarant 
himself;  but  here  we  are  met  by  the  difficulty,  that  the  son  could 
only  have  known  the  fact  of  his  own  illegitimacy  by  information 


1  Davies  v.  Lowndes,  7  Scott,  N.  R.  188,  per  Parke,  B. ;  S.  C.  p.  212. 

'  Shrewsbury  Peer.,  7  H.  of  L.  Cas.  23,  26. 

=*  Id.  25. 

*  Doe  V.  Barton,  2  M.  &  Rob.  28,  per  Patteson,  J.     See  Doe  r.  Davies,  10  Q. 
B.  314. 

^  Crispin  v.  Doglioni,  32  L.  J.,  Pr.  &  Itlat.  109;  3  Swab.  &  Trist.  44,  S.  C. 

"  Cooke  I'.  Lloyd,  Pea.   Ev.  App.   xxviii.,  per  Le  Blanc,  J.     See  Hitchins  u. 
Eardley,  2  Law  Rep.,  P.  &  D.  248;  40  L.  J.,  Pr.  &  Mat.  70,  S.  C. 

(3429) 


562  DECLARATIONS  OF  HUSBAND  AFTER  MIFE'S  DEATH.       [PART  II. 

received  from  others;  and,  as  a  bastard  has  in  the  eye  of  the  law 
no  relatives,  the  hearsay  must  have  been  derived  from  strangers, 
and  its  admissibility  might  on  that  ground  be  questioned. 


§  637.  On  the  whole,  it  may  bo  considered  as  a  point  of  great  ^  573 
doubt,  whether,  under  any  circumstances,  the  declarations  of  a 
person  deceased,  asserting  his  own  illegitimacy,  can  be  received; 
excepting  as  admission  against  himself  and  those  who  claim  under 
him  by  some  title  derived'  subsequently  to  the  statements  being 
made.^  In  the  case  referred  to  above,^  evidence  was  received  that 
the  father  had  specified  the  time  of  his  marriage,  had  declared  his 
eldest  son  to  have  been  born  before  that  date,  had  heaped  upon  him 
opprobrious  epithets  implying  illegitimacy,  and  had  on  his  death- 
bed pointed  to  his  younger  son  as  his  heir;  and  these  declarations 
would  seem  to  have  been  clearly  admissiljle,  if  not  as  directly  prov- 
ing the  bastardy  of  a  person,  who,  though  de  facto  his  son,  was  de 
jure  a  stranger  to  him,  at  least  as  showing  the  position  of  the 
legitimate  portion  of  his  family,  through  whom  the  plaintiff  claimed 
his  title.^  It  may  be  observed,  by  way  of  caution,  that  had  the  de- 
clarations of  the  father  been  confined  to  a  general  statement  that  his 
son  was  illegitimate,  they  might  possibly, — after  proof  of  a  valid 
marriage,* — have  been  rejected;  for  as  such  statements  might  have 
been  made  in  consequence  of  non-access  after  marriage,  they  would 
seem  to  fall  within  the  rule  of  law,  which  perhaps  stilP  precludes 
parents  from  giving  testimony  to  bastardise  their  issue  born  during 
wedlock.*^ 

§  638.  If  a  man  has  once  been  connected  with  a  family  by  mar-    §  574 
riage,  the  death  of  his  wife  will  not  dissolve  that  connexion,  so  as 
to  render  inadmissible  declarations  subsequently  made  by  him;  and 
therefore  where,  in  a  case  of  pedigree,  a  witness  was  asked  whether 

'  See  R.  V.  Kishworth,  2  Q.  B.  487,  per  Wightman,  J.;  and  Proc.  Gen.  v. 
Williams,  31  L.  J.,  Pr.  &  Mat.  1.57,  per  Sir  C.  Cresswell;  S.  C.  nom.  Dyke  v. 
Williams,  In  re  Mary  Emsley,  2  Swab.  &  Trist.  491. 

■^  See  n.  ",  ante,  p.  561. 

^  See  Goodright  v.  Moss,  2  Cowp.  593,  594,  per  Ld.  Man.sfield;  Murray  v. 
Milner,  48  L.  J.,  Ch.  775,  per  Fry,  J. 

*  Murray  v.  Milner,  48  L.  J.,  Ch.  775,  per  Fry,  J.;  L.  R.,  12  Cli.  D.  849, 
S.  C.  ^  See  post,  §  950. 

«  R.  V.  Stourton,  5  A.  &  E.  180. 

(3430) 


CHAP.  IX.]  IIEARSxVY  ON  HEARSAY — GENERAL  REPUTE  IN  FAMILY.    5G3 

he  had  not  heard  a  husband  since  deceased  state,  after  his  wife's 
death,  that  she  was  illegitimate,  the  answer  was  received,  though 
the  counsel  declined  to  put  the  further  question,  whether  the  hus- 
band had  derived  his  information  from  the  wife  during  the  cover- 
ture.' The  court  presumed  in  this  case  that  the  knowledge  must 
have  been  obtained  by  the  husband  whilst  he  was  a  member  of  the 
family." 

§  639.  Again,  no  valid  objection  can  be  taken  to  evidence  of  this  §  575 
kind,  on  the  ground  that  it  is  hearsay  upon  hearsay,  provided  all 
the  declarations  come  from  different  members  of  the  same  family, 
or  do  not  directly  appear  to  have  been  derived  from  strangers. 
Thus,  the  declarations  of  a  deceased  widow,  respecting  a  statement 
which  her  husband  had  made  to  her,  as  to  who  his  cousins  were, — 
as  also  the  declaration  of  a  relative,  in  which  he  asserts  generally 
that  he  has  heard  what  he  states, — have  been  received.  If  this 
were  not  so,  the  main  object  of  relaxing  the  ordinary  rules  of  evi- 
dence would  be  frustrated,  since  it  seldom  happens  that  the  declara- 
tions of  deceased  relatives  embrace  matters  within  their  own  personal 
knowledge.*  Eiven  general  7^epute  in  i/ie /amz7«/,  proved  by  the  tes- 
timony of  a  surviving  member  of  it,  has  been  considered  as  falling 
within  the  rule.^  Moreover,  it  is  not  necessary  to  show  that  the 
declarations  were  contemporaneous  with  the  events  to  which  they 
relate;  for,  as  Lord  Brougham  has  well  observed,  such  a  restriction 
"  would  defeat  the  purpose  for  which  hearsay  in  pedigree  is  let  in,, 
by  preventing  it  from  ever  going  back  beyond  the  lifetime  of  the 
person  whose  declaration  is  to  be  adduced  in  evidence;  "  and,  to  use- 
a  homely  illustration, — it  would  even  render  inadmissible  the  state- 


1  Vowles  t'.  Young,  13  Ves.  140,  per  Ld.  Erskine;  Doe  v.  Harvey,  Ry.  & 
M.  297,  per  Littledale,  J.     But  see  observations  in  last  section. 

^  Per  Burrough,  J.,  in  Johnson  v.  Lawson,  2  Bing.  92;  9  Moore,  194,  S.  C. 

3  Shedden  v.  Att-Gen.  &  Patrick,  30  L.  J.,  Pr.  &  Mat.  217,  231,  232. 

*Doe  V.  Randall,  2  M.  &  B.  20;  Monkton  v.  Att.-Gen.,  2  Russ.  &  Myl. 
165,  166,  per  Ld.  Brougham;  Slaney  v.  Wade,  7  Sim.  611,  per  Shadwell, 
V.-C;  1  Myl.  &  Cr.  355,  S.  C,  per  Ld.  Cottenham.  See  Robson  c.  Att.-Gen., 
10  CI.  &  Fin.  500— .'503,  and  Davies  v.  Lowndes,  7  Scott,  N.  R.  211—213  ;  6 
M.  &  Gr.  525,  527,  S.  C.     See  post,  U  055,  656. 

5  Doe  V.  Griffin,    15   East,  293;   B.  N.   P.    295  ;   Shedden  v.  Att.-Gen.  & 
Patrick,  30  L.  J.,  Pr.  &  Mat.  217,  231,  232. 
15   LAW  OF  EVID. — V.  II.  (3431) 


5G-4  RELATIONSHIP  OF  DECLARANT  MUST  BE  PROVED.        [PART  II. 

ment  of  a  deceased  person  as  to  the  maiden  name  of  bis  own  grand- 
mother.' 


§  640.  Before  a  declaration  can  be  admitted  in  evidence,  the  ?  ^"^^ 
relationship  of  the  declarant  with  the  family  must  be  established  by- 
some  proof  independent  of  the  declaration  itself  ,'  and  although, 
in  tracing  ancient  pedigrees,  the  court  would  probably  be  satisfied 
with  slight  evidence  on  this  head,  since  the  connexion  of  the 
declarant  with  the  family  might  be  equally  difficult  of  proof  with 
the  very  fact  in  controversy  ;  yet  some  evidence  would  certainly 
be  required;  for,  otherwise,  a  stranger,  by  claiming  alliance  with 
a  family,  and  then  making  statements  respecting  it,  might  assume 
to  himself  the  power,  after  death,  of  materially  altering  the  relative 
rights  of  its  several  branches.^  It  seems,  however,  unnecessary 
to  show  the  exact  degree  of  relationship  that  subsists  between 
the  dedarant  and  the  person  respecting  whom  the  declarations 
are  tendered,  but  it  will  be  sufficient  to  prove  that  they  were  in 
some  manner  connected  by  blood  or  marriage;*  and  if  the  question 
be  whether  any,  or  what,  relationship  subsists  between  two  sup- 
posed branches  of  the  same  family,  it  is  only  necessary  to  establish 
the  connexion  of  the  declarant  with  either  branch.^  It  has,  indeed, 
been  urged,  that  proof  must  be  given  connecting  the  declarant  with 
both  branches;  but  this  proposition  involves  the  absurdity,  that 
if  such  limitation  was  allowed,  the  declarations  would  be  super- 
fluous,  as  merely  tending  to  prove  a  connexion,  which,  by  showing 


^  Monkton  v.  Att-Gen.,  2  Russ  &  Myl.  157,  158;  Lovat  Peer.,  Pr.  Min. 
89. 

•■^  Monkton  r.  Att.-Gen.,  2  Russ.  &  Myl.  156,  157;  Banbury  Peer.,  2  Selw. 
N.  P.  754,  8th  ed.;  per  Ld.  Eldon  in  Berkeley  Peer.,  4  Camp.  419;  Leigh 
Peer.,  Pr.  Min.  307;  Stafford  Peer.,  1825,  Pr.  INIin.  5  ;  R.  v.  All  Saints,  7  B. 
&  C.  789,  per  Bayley,  J.;  Davies  r.  Morgan,  1  C.  &  J.  591,  per  id.;  Att.-Gen. 
V.  Kohler,  9H.  of  L.  Cas.  660,  669,  670,  684,  685;  Plant  v.  Taylor,  7  H.  &  N. 
211,  227,  237;  Proc.-Gen.  v.  Williams,  31  L.  J.,  Pr.  &  Mat.  157;  S.  C.  nom. 
Dyke  v.  Williams,  In  re  Mary  Emsley,  2  Swab.  &  Trist.  491. 

3  See  Doe  v.  Randall,  2  M.  &  P.  24,  per  Best,  C.  J. 

*  See  Vowles  v.  Young,  13  Ves.  147. 

*  Monkton  v.  Att.-Gen.,  2  Russ.  &  IVIyl.  157,  per  Ld.  Brougham.  See 
Smith  V.  Tebbitt,  1  Law  Rep.,  P.  &  D.  354;  36  L.  J.,  Pr.  &  Mat.  35,  S.  C. 

(3432) 


CHAP.  IX.]  DECLARONS.  INADMISSIBLE  DURING  declarant's  LIFE.    5G5 

that  the  declarant  was  related  to  both  branches,  had  already  been 
established.' 


§  641.  Though  hearsay  evidence  is  admitted  in  cases  of  pedi-  ?  577 
gree,  on  the  assumption  that  no  better  evidence  can  be  procured, 
yet,  the  rule  being  once  established,  such  evidence  will  not  be  re- 
jected, though  living  witnesses  might  have  been  called  to  prove 
the  very  facts  to  which  it  relates."  Thus,  the  declarations  of  a 
deceased  mother,  as  to  the  time  of  the  birth,  of  her  son,  have  been 
received,  though  the  father  was  living  and  was  not  called.^  Still, 
if  the  declarant  himself  be  alive,  and  capable  of  being  examined, 
his  declarations  will  be  rejected;  *  and,  consequently,  it  lies  upon 
the  party,  who  seeks  to  avail  himself  of  this  species  of  evidence, 
to  prove  the  declarant's  death.  In  a  modern  case  of  great  interest 
in  Ireland,  where,  in  order  to  establish  a  Scotch  marriage,  a  rela- 
tive of  the  supposed  husband  had  been  asked  at  the  trial  what 
she  had  heard  on  the  subject  from  members  of  the  family,  her 
answer  was  held  by  the  Court  of  Error  to  have  been  rightly  re- 
jected, on  the  ground  that  the  question  had  not  been  limited  to 
statements  made  by  deceased  relatives.^  Another  qualification, 
restricting  the  admission  of  hearsay  evidence  in  matters  of  pedi- 
gree, has  already  been  pointed  out  and  discussed  in  the  last 
chapter  ;  we  allude  to  the  rule  rejecting  aJl  hearsay  declarations 
which  are  made  post  litem  motam,^ 

§  642.^  The  term  pedigree  embraces  not  only  general  questions    ^  578 
of  descent  and  relationship,  but  also  the  particular  facts  of  birth 
marriage,  and  death,  and  the    times^  when,  either    absolutely  or 
relatively,  these  events  happened,  provided  such  facts  are  required 


^  Monkton  v.  Alt. -Gen.,  2  Russ.  &  Myl.  157,  per  Ld.  Brougham. 

2  Ph.  Ev.  212. 

^  R.  v.  Birmingham,  cited  in  Hubb.  Ev.  of  Sue.  6G0. 

*  Pendrell  v.  Pendrell,  2  Str.  924. 

*  Butler  V.  Mountgarret,  6  Ir.  Law  R.,  N.  S.    77;  7  H.  of  L.  Cas.  0.33^   R.   C. 
in  Dom.  Proc. 

6  Ante,  ?i  628—634;  Butler  r.  Mountgarret,  6  Jr.   Law  R.,  N.   S.    77;  7  H. 
of  L.  Cas.  633,  S.  C.  in  Dom.  Proc. 

'  Gr.  Ev.  ?  104,  as  to  first  four  lines,  in  part. 
8  Betty  V.  Nail,  6  Ir.  Law  R.,  N.  S.  17. 

(3433) 


5CG    •    BIRTH,  MARRIAGE,  DEATH,  PROVABLE  BY  HEARSAY.      [PABT  11. 

to  be  proved  for  some  genealogical  purpose.'  All  these  facts, 
therefore,  may,  in  any  genealogical  inquiry,  bo  established  by 
hearsay  derived  from  relatives,  though,  with  respect  to  specific 
dates,  some  doubts  have  been  entertained  as  to  the  extent  and 
application  of  the  rule.  Thus,  on  the  trial  of  an  issue  out  of 
Chancery,  Chief  Justice  Tindal  once  rejected  the  declarations  of 
deceased  persons,  which  were  tendered  to  prove  the  ages  of  their 
relatives,  on  the  ground  that,  though  admissible  for  the  purpose 
of  showing  the  relationship,  they  could  not  be  received  as  proof 
of  particular  facts,  such  as  the  ages  of  parties.^  The  authority, 
however,  of  this  decision  has  been  much  shaken;  for  when  it  was 
brought  before  Lord  Brougham  on  a  motion  for  a  new  trial,  his 
lordship  intimated  a  very  strong  opinion  in  favour  of  the  admis- 
sibility of  the  evidence,  and  subsequently  stated  that  Mr.  Justice 
Parke  and  Mr.  Justice  Littledale,  to  whom  he  had  submitted  the 
point,  entirely  concurred  in  the  view  he  had  taken.^  If  to  these 
high  authorities  be  added  several  old  and  some  modern  decisions 
expressly  in  point,*  the  dicta  of  judges,^  the  opinions  of  text  writers,^ 
and  the  general  practice  of  the  profession,  the  student  will  pro- 
bably be  justified  in  concluding  that  the  proposition  contended  for 
by  Chief  Justice  Tindal  is  not  law. 


§  643.  It  may  be  urged  that,  as  hearsay  evidence  of  particular    ?  579 
facts  is  inadmissible  in  support  of  public  rights,'  the  same  rule 
should    prevail    in   matters    of   pedigree  ;    but,   in    the    Berkeley 
Peerage  case,  Sir  James    Mansfield    drew    a   distinction    between 
these  two  subjects   of  inquiry,  which  appears  to  put  the  law  in 


^  As  to  this  proviso,  see  post,  ^  645. 

2  Kidney  v.  Cockburn,  2  Russ.  &  Myl.  168.  ^  Id.  170,  171. 

*  Herberts.  Tuclval,  T.  Ray.  84;  recognised  by  Ld.  Ellenborough  in  Roe 
V.  Rawlings,  7  East,  290;  case  cited  in  1  Ph.  Ev.  214,  from  Vin.  Ab.,  Ev. 
T.  b.  01;  Vulliamy  v.  Huskisson,  3  Y.  &  C,  Ex.  R.  82,  per  Ld.  Abinger  ; 
Ryder  v.  Malborne,  cited  2  Russ.  &  Myl.  169,    as  a  decision  by  Littledale,  J. 

^  Per  Ld.  Mansfield,  in  Goodright  ?'.  Moss,  2  Cowp.  594;  per  Ld.  Brougham, 
in  Monkton  v.  Att.-Gen.,  2  Russ.  &  Myl.  156;  per  K.  Bruce,  V.-C,  in  Shields 
V.  Boucher,  1  De  Gex  &  Sm.  51;  per  Pollock,  C.  B.,  in  Plant  v.  Taylor,  7 
H.  &  N.  226. 

«  1  Ph.  Ev.  213;  Hubb.  Ev.  of  Sue.  649;  3  St.  Ev.  841. 

^  Ante,  §  617. 

(3434) 


CHAP  IX.]      HEARSAY  OF  TARTICULAR  FACTS,  WHEN  ADMISSIBLE.      567 

its  proper  light.  "  la  cases  of  general  right,"  said  his  lordship, 
"  which  depend  upon  imrciemorial  usage,  living  witnesses  can  only 
speak  of  their  own  knowledge  to  what  passed  in  their  own  time  ; 
and  to  supply  the  deficiency,  the  law  receives  the  declarations  of 
persons  who  are  dead.  There,  however,  the  witness  is  only  allowed 
to  speak  to  what  he  has  heard  the  dead  man  say  respecting  the 
reputation  of  the  right  of  way,  or  of  common,  or  the  like.  A 
declaration  with  regai'd  to  a  particular  fact,  which  would  support 
or  negative  the  right,  is  inadmissible.  In  matters  of  pedigree,  it 
being  impossible  to  prove  by  living  witnesses  the  relationships  of 
past  generations,  the  declarations  of  deceased  members  of  the 
family  are  admitted ;  but  here,  as  the  reputation  must  proceed  on 
particular  facts,  such  as  marriages,  births,  and  the  like,  from  the 
necessity  of  the  thing,  the  hearsay  of  the  family  as  to  these  par- 
ticular facts  is  not  excluded.  General  rights  are  naturally  talked 
of  in  the  neighbourhood  ;  and  the  family  transactions  among  the 
relations  of  the  parties.  Therefore,  what  is  thus  dropped  in  con- 
versation upon  such  subjects  may  be  presumed  to  be  true.'" 

§  644.  Still,  the  hearsay  evidence  must,  it  seems,  be  confined  ^  580 
to  such  facts  as  are  immediately  connected  with  the  question  of 
pedigree  ;  and  declarations  as  to  independent  facts,  from  which 
the  date  of  a  genealogical  event  may  be  inferred,  will  probably  be 
rejected.  It  is  not  easy  to  express  this  limitation  of  the  rule  in 
intelligible  language,  but  the  following  cases  will  explain  its  pur- 
port. In  a  question  of  legitimacy,  turning  upon  the  time  of  birth, 
a  declaration  by  the  deceased  sister  of  the  alleged  bastard's  fiiother, 
stating  that  she  had  suckled  the  child,  was  tendered  in  evidence  ; 
and  being  coupled  with  the  proof  of  the  time  when  her  own  child 
was  born,  it  tended  to  fix  the  alleged  bastard's  birth  at  a  period 
subsequent  to  its  parent's  marriage.  Mr.  Baron  Gurney  admitted 
this  evidence  ;  but  Lord  Cottenham  expressed  an  opinion  that  he 
was  wrong  in  so  doing."  In  another  case,^  where  the  question 
turned  on  the  relative   seniority   of  three  sons,   born  at  a  birth. 


1  4  Camp.  415,  416. 

^  Isaac  V.  Gompertz,  cited  in  Hubb.  Ev.  of  Sue.  650. 

^  Vin.   Ab.,    Ev.  T.  b.  91 ;  probably  referred  to,   as  Spadwell  v.    ,  by 

Lawrence,  J.,  in  the  Berkeley  Peer.,  4  Camp.  410. 

(3435) 


5G8  HEARSAY  AS  TO  PEDIGREE,  WHEN  ADMISSIBLE,  [PAET  II. 

declarations  by  his  father  that  ho  had  christened  them  Stephanus, 
Fortunatus,  and  Achaicus,  according  to  the  order  of  the  names  in 
St.  Paul's  First  Epistle  to  the  Corinthians/  for  the  purpose  of 
distinguishing  their  seniority,  as  also  declarations  by  an  aunt,  who 
was  present  at  the  confinement,  and  who,  with  a  similar  object, 
had  tied  strings  round  the  arms  of  the  second  and  third  child, 
was  admitted.  The  distinction  between  these  two  cases  is  clear. 
In  the  former,  the  fact  of  suckling  the  child  had  no  direct  bearing 
on  its  age  or  legitimacy,  but  was  only  a  species  of  circumstantial 
evidence  from  which  these  facts  might  be  inferred  ;  whereas  in 
the  latter,  the  christening  and  the  tying  strings  round  the  arms 
of  the  children  were  intended  fi'om  the  first  to  afford  the  means  of 
ascertaining  their  relative  seniority. 

§  645.  Although,  as  Mr.  Phillipps  justly  observes,  "  there  ap-  I  581 
pears  to  be  no  foundation  for  any  distinction  between  cases  where  a 
matter  of  pedigree  is  the  direct  subject  of  the  suit,  and  other  cases 
where  it  occurs  incidentally,""  yet  the  declarations  of  relatives  will 
not  necessarily  be  admissible  whenever  the  birth,  marriage,  or  death 
of  a  party  forms  the  subject  of  controversy ;  but  such  proof  would 
seem  to  be  confined  to  cases  which  directly  or  indirectly  involve 
some  question  of  relationship,  and  in  which  the  fact  sought  to  be 
established  by  hearsay  is  required  to  be  proved  for  some  genealogical 
purpose.^  For  instance,  if  an  action  for  use  and  occupation  be 
brought  by  a  reversioner  against  a  tenant  pour  autre  vie,  who  has 
held  over  after  the  death  of  his  cestui  que  vie,  the  fact  of  the  death 
must  be  proved  by  the  plaintiff  in  the  ordinary  way,  and  the  hear- 
say of  relatives  will  be  inadmissible.*  So,  in  support  of  a  plea  of 
infancy,  letters  written  by  the  deceased  father  of  the  defendant 
cannot  be  read  as  proof  of  the  date  of  his  son's  birth. ^  So,  in  R.  v. 
Erith,^  it  was   distinctly  held,  that   the  declarations   of  a  deceased 

1  Ch.  16,  V.  17.  2  1  Ph.  Ev.  216,  n.  5. 

^Shields  v.  Boucher,  1  De  Gex  &  Sm.  40,  per  K.  Bruce,  V.-C.  See  Smith 
V.  Smith,  I.  R.,  10  Eq.  273;  S.  C.  reversed  on  app.,  1  L.  E.,  Ir.  206. 

*  Whittuck  V.  Waters,  4  C.  &  P.  376,  per  Park,  J. 

*  Figg  V.  Wedderburne,  6  Jur.  218,  per  Patteson,  J. ;  Haines  v.  Guthrie,  53 
L.  J.,  Q.  B.  521,  per  Ct.  of  App. 

*"  8  East,  539.  In  this  case  the  child  was  a  bastard,  and  the  declarations  of 
his  putative  father  would  therefore  have  been  inadmissible  even  on  a  question 
of  pedigree,  but  this  point  was  not  raised.     See  ante,  §§  636,  637. 

(3436) 


CHAP.  IX.]  HEARSAY  EVIDENCE  OF  LOCALITY.  569 

father  .as  to  the  place  where  his  child  was  born,  could  not  be  received 
as  evidence  of  the  birth  settlement  of  the  child.' 


§  646,  The  case  of  R.  v.  Erith^  has  repeatedly  been  cited  as  I  582 
an  authority  for  the  proposition,  that,  even  in  a  strict  question  of 
pedigree,  hearsay  evidence  of  locality, — or,  in  other  words,  the 
declarations  of  deceased  persons  respecting  the  places  where  their 
relatives  were  born,  and  where  they  married,  resided,  came  from, 
went  to,  or  died, — cannot  be  received;  but  certainly,  as  was  once 
pointed  out  by  Viee-Chancellor  Knight  Bruce,^  the  case  decides  no 
such  point,  since  Lord  Ellenborough  carefully  rested  his  judgment 
on  the  fact,  that  no  question  whatsoever  of  relationship  was  in- 
volved in  the  inquiry.  Had,  therefore,  the  evidence  tendered  in 
that  case  been  required  for  any  genealogical  purpose,  it  is  very  pos- 
sible that  the  Court  of  King's  Bench  would  have  arrived  at  a 
different  conclusion;  and,  indeed,  this  may  be  considered  as  a  highly 
probable  hypothesis,  inasmuch  as  hearsay  evidence  of  locality  has 
on  several  occasions  been  admitted  to  elucidate  matters  of  strict 
pedigree. 

§  647.  Thus,  in  Hood  v.  Lady  Beauchamp,*  where  the  question  ?  582 
was,  whether  A.  B.,  an  ancestor  of  the  declarant  C,  was  the  same 
person  as  A.  B.,  a  blacksmith,  who  had  resided  at  X.,  a  declaration 
by  C.  that  his  ancestor  was  a  blacksmith,  and  that  he  resided  at  X., 
was  received  in  evidence  by  Vice- Chancellor  Shadwell.  So,  in 
Shields  v.  Boucher,^  Vice-Chancellor  Knight  Bruce,  in  a  very  ela- 

*  Strenuous  efforts  were  formerly  made  to  render  the  declarations  oi 
deceased  persons  admissible  in  proof  of  particulars  respecting  their  settle- 
ments; but  these  efforts  have  long  since  failed.  See  R.  v.  Eriswell,  3  T.  R. 
707;  R.  V.  Chadderton,  2  East,  29 ;  R.  v.  Ferry  Frystone,  id.  55  ;  R.  v. 
Abergwilly,  id.  63.  ^  g  -^^^^^  539 

^  Shields  v.  Boucher,  1  De  Gex  &  Sm.  50,  56. 

♦  Hubb.  Ev.  of  Sue.  468. 

^  1  De  Gex  &  Sm.  40.  In  this  case  an  issue  had  been  directed  out  of  Chan, 
to  ascertain  the  relationship  of  certain  parties,  and  on  the  trial  all  the  ques- 
tions put  in  the  text,  except  the  last,  had  been  rejected  by  Wilde,  C.  J.  On 
a  motion  for  a  new  trial,  K.  Bruce,  V.-C,  expressed  his  opinion  that  the  Ch. 
Just,  was  wrong  in  rejecting  the  evidence,  but  it  ultimately  became  unneces- 
sary to  decide  the  point.  The  V, -Chancellor's  judgment  is  a  very  masterly 
production,  and  deserves  an  attentive  perusal. 

(3437) 


570  FORMS  OF  HEARSAY — ORAL  DECLARATIONS.  [PART  II, 

borate  judgment,  intimated  a  strong  opinion,  that,  in  a  controversy 
merely  genealogical,  declarations  made  by  a  deceased  pei'son  as  to 
where  he  or  his  family  came  from,  "  of  what  place  "  his  father  was 
designated,  and  what  occupation  his  father  followed,  would  be  ad- 
missible, and  might  be  most  material  evidence  lor  the  purpose  of 
identifying  and  individualising  the  person  and  family  under  discus- 
sion. Again,  if  it  be  necessary  to  show,  that  a  family  had  relations 
who  lived  at  a  particular  place,  declarations  by  a  deceased  member 
of  the  family,  that  "  he  was  going  to  visit  his  relatives  at  that 
place,"  will  be  evidence;  not,  indeed,  that  he  went  there,  or  that 
any  person  of  his  name  lived  in  that  neighbourhood ;  but  as  proving 
a  tradition  in  the  family,  that  they  once  had  relations  living  in 
the  place  in  question,  which  tradition,  in  the  event  of  its  being 
shown  by  other  evidence  that  persons  of  the  same  name  had  re- 
sided there,  might  be  important  as  a  mode  of  identifying  those 
persons  with  the  branch  of  the  family  alluded  to.^  So,  evidence  has 
been  received  of  a  family  tradition,  that  a  particular  individual  died 
in  India,  for  the  purpose  of  connecting  that  individual  with  the 
family  of  the  claimant.^ 

§  648.  The  forms,  under  which  hearsay  evidence  in  matters  of  §  583 
pedigree  may  be  presented,  are  very  numerous.  First  may  be 
noticed  the  oral  declarations  of  deceased  relatives.  These  are 
clearly  admissible  if  made  ante  litem  motam,  though  they  are 
seldom  entitled  to  any  great  weight;  for  not  only  are  they  gene- 
rally sought  to  be  established  by  connexions  of  the  family  or 
other  persons  interested  in  the  result  of  the  litigation,  but  they 
are  often  recorded  or  remembered  for  the  first  time  after  the 
contest  has  arisen.  In  these  cases  the  court  necessarily  runs 
considerable  risk  of  being  deceived  by  deliberate  falsehood,  for  it 
is  obviously  difficult,  not  to  say  impossible,  to  convict  a  witness 
of  perjury  in  narrating  what  he  alleges  that  he  heard  in  a  con- 
versation with  a  deceased  person.^  And,  even  assuming  that  the 
sincerity  of    the  witness  cannot  reasonably  be    doubted,  it  often 


1  Rishton  v.  Nesbitt,  2  M.  &  Rob.  554,  per  Rolfe,  B. 
^  Id.  556,  citing  Monkton  v.  Att.-Gen.,  2  Russ.  &  Myl.  147—151. 
^  Crouch  V.  Hooper,   16    Beav.   184—189,    per  Romilly,    M.  R.;    Webb   v. 
Haycock,  19  Reav.  342,  per  id. 

(3438) 


CHAP.  IX.]        EVIDENCE  OF  FAMILY  CONDUCT  ADMISSIBLE.  571 

happens  that  little  reliarce  can  be  placed  on  the  accuracy  of  his 
testimony;  for  men,  without  deliberately  intending  to  falsify  facts, 
are  extremely  prone  to  believe  what  they  wish,  to  confound  what 
they  believe  with  what  they  have  heard,  and  to  ascribe  to  memory 
what  is  merely  the  result  of  imagination.* 

§  649.^  Next,  family  conduct, — such  as  the  tacit  recognition  of  §  ^^^ 
relationship,  and  the  distribution  and  devolution  of  property, — is 
frequently  received  as  evidence  from  which  the  opinion  and  belief 
of  the  family  may  be  inferred,  and  as  resting  ultimately  on  the 
same  basis  as  evidence  of  family  tradition.  For,  since  the  prin- 
cipal question  in  pedigree  cases  turns  on  the  parentage  or  descent 
of  an  individual,  it  is  obviously  material,  in  order  to  resolve  this 
question,  to  ascertain  how  he  was  treated  and  acknowledged  by 
those  who  sustained  towards  him  any  relations  of  blood  or  of 
affinity.  Thus,  in  the  Berkeley  Peerage  Case,  Sir  James  Mans- 
field remarked,  that,  "if  the  father  is  proved  to  have  brought 
up  the  party  as  his  legitimate  son,  this  amounts  to  a  daily  asser- 
tion that  the  son  is  legitimate."  ^  So,  the  concealment  of  the 
birth  of  a  child  from  the  husband,* — the  subsequent  treatment  of 
such  child  by  the  person  who,  at  the  time  of  its  conception,  was 
living  in  a  state  of  adultery  with  the  mother, — and  the  fact  that 
the  child  and  its  descendants  assumed  the  name  of  the  adulterer, 
and  had  never  been  recognised  in  the  family  as  the  legitimate 
offspring  of  the  husband, — are  circumstances  that  will  go  far  to 
rebut  the  presumption  of  legitimacy,  which  the  law  raises  in 
favour  of  the  issue  of  a  married  woman.^  Again,  if  the  question 
be  whether  a  person,  from  whom  the  claimant  traces  his  descent, 
was  the  son  of  a  particular  testator,  the  fact  that  all  members 
of  the  family  appear  to  have  been  mentioned  in  the  will,  but  that 
no  notice    is   taken    of  such   person,    is  strong  evidence  to   show, 


'  Crouch  V.  Hooper,  16  Beav.  184—189,  per  Komilly,  M.  R. 

2  Gr.  Ev.  I  106,  in  part.  »  4  Camp.  416. 

*  Hargrave  v.  Hargrave,  2  C.  «&  Kir.  701. 

^  Goodright  v.  Saul,  4  T.  R.  356,  per  Ashhurst,  J. ;  Morris  v.  Davies,  5  CI.  & 
Fin.  163,  241,  et  seq.;  Banbury  Peer.,  App.  n.  eto  Le  Marchant's  Rep.  of  Gard- 
ner Peer.,  389,  432,  433;  1  Sim.  &  St.  153,  S.  C;  R.  v.  Mansfield,  1  Q.  B.  444; 
Townshend  Peer.,  10  CI.  &  Fin.  289;  Atchley  v.  Sprigg,  33  L.  J.,  Ch.  345. 

(3439) 


572  ENTRIES  IN  BIBLES,  ETC.,  ADMISSIBLE.  [PART  II. 

either  that  he  was  not  the  son,  or  at  least  that  he  had  died  with- 
out issue  before  the  date  of  the  will ;'  and  if  the  object  be  to  prove 
that  a  man  left  no  children,  the  production  of  his  will,  in  which 
no  notice  is  taken  of  his  family,  and  by  which  his  property  is  be- 
queathed to  strangers  or  collateral  relations,  is  cogent  evidence  of 
having  died  childless." 

§  050.^  Entries  made  by  a  parent  or  relation  in  bibles,*  prayer-  ?  ^85 
books,^  missals,"  almanacs,'  or  indeed  in  any  other  book,  or  in 
any  document  or  paper,^  stating  the  fact  and  date  of  the  birth, 
marriage,^  or  death  of  a  child,  or  other  relation,  are  also  received 
as  the  written  declarations  of  the  deceased  persons  who  respec- 
tively made  them.  Entries  in  a  family  bible  or  testament  will  be 
admissible,  even  without  proof  that  they  have  been  made  by  a 
relative;  for  as  this  book  is  the  ordinary  register  of  families,  and 
is  usually  accessible  to  all  its  members,  the  presumption  is  that 
the  whole  family  have  more  or  less  adopted  the  entries  contained 
in  it,  and  have  thereby  given  them  authenticity.'"  This  presump- 
tion, however,  will  not  prevail  in  favour  of  an  entry  in  any  other 
book,  however  religious  its  character  may  be,  but  proof  must  be 
given,  either  that  the  entry  was  made  by  some  member  of  the 
family,"  or  that  it  has  been   acknowledged  or  treated  by  a  relative 


1  Tracy  Peer.,  10  CI.  &  Fin.  100,  per  Ld.  Campbell;  Robson  v.  Att.-Gen., 
id.  498—500,  per  Ld  Cottenham.     See  ante,  |  620,  ad  fin. 

2  Hungate  v.  Gascoigue,  2  Phill.  25;  2  Coop.  414,  S.  C;  De  Roos  Peer.,  2 
Coop.  540.  ^  Gr.  Ev.  |  104,  in  part. 

*  Berkeley  Peer.,  3rd  quest.,  4  Camp.  401. 
s  Leigh  Peer.,  Pr.  Min.  310. 

6  Slane  Peer.,  Pr.  Min.  pt.  2,  p.  49;  5  CI.  &  Fin.  41,  S.  C. 

7  Herbert  v.  Tuckal,  T.  Ray.  84. 

^  Berkeley  Peer.  3rd  quest.,  4  Camp.  418.  See  Jackson  v.  Cooley,  8  Johns. 
128,  131;  Douglas  r.  Saunderson,  2  Dall.  IIG;  Carskadden  v.  Poorman,  10 
AVatts,  82. 

5  In  the  Sussex  Peer. ,  an  entry  made  by  the  mother  of  the  claimant  in  her 
prayer-book,  declaring  the  fact  of  her  marriage,  was  admitted  in  evidence,  11 
CI.  &  Fin.  85,  98. 

1"  Berkeley  Peer.,  4  Camp.  421,  per  Lds.  Ellenborough  and  Redesdale; 
Monkton  v.  Att.-Gen.,  2  Russ.  &  Myl.  162,  163,  per  Ld.  Brougham;  Hubbard 
V.  Lees.  35 L.  J.,  Ex.  169;  1  Law  Rep.,  Ex.  255;  4  H.  &  C.  418,  S.  C. 

"  Tracy  Peer,  cited  Hubb.  Ev.  of  Sue.  673;  Crawford  &  Lindsay  Peer.,  2  H. 
of  L.  Cas.  558—560. 

(3440) 


CHAP.  IX.]   RECITALS  IN  FAMILY  DEEDS  AND  WILLS  ADMISSIBLE.      573 

as  a  correct  family  memorial,'  or,  at  least,  if  ancient,  that  it  was 
made  at  the  time  when  it  purports  to  have  been  written.  In 
order  to  establish  this  last  fact,  the  evidence  of  skilled  witnesses, 
conversant  with  manuscripts  of  different  ages,  is  admissible,  though, 
as  before  observed,  such  evidence  is  entitled  to  very  little  weight.^ 


§  651.'  Again,  the  correspondence  of  deceased  members  of  the  ^  586 
family,*  will,  on  proof  of  the  handwriting,  be  received,"^  as  will  also, 
recitals  in  marriage  settlements,^  and  other  family  deeds,^  descrip- 
tions in  tvills,^  and  the  like.  Even  a  cancelled  will,  which  did  not 
appear  to  have  been  ever  acted  upon,  has  been  admitted,  on  proof 
that  it  was  found  among  the  papers  of  a  descendant  of  the  testator, 
who  seemed  to  have  kept  it  as  containing  statements  relative  to 
the  family.**  So,  recitals  of  descent,  and  descriptions  of  parties, 
in  deeds  other  than  family  instruments,  will  be  received,  provided 
the  deeds  come  from  the  proper  custody,  and  are  proved,  or  may 
fi'om  age  be  presumed,  to  have  been  executed  by  some  member  of 
the  family  to  which  the  statements  refer.''  But  the  execution  of 
the  deed  by  a  relation  is  an  indispensable  requisite  ;  and  therefore, 
where  an  indenture  of  assignment,  which  recited  that  the  assignee 
was  the  son  of  certain  parties,  was  executed  alone  by  the  assignor, 


*  Hood  V.  Beauchamp,  8  Sim.  26. 

2  Tracy  Peer.,  10  CI.  &  Fin.  154  ;  ante,  §  50. 

*  Gr.  Ev.  §  104,  in  part. 

*  Huntingdon  v.  Peer.,  Att.-Gen.'s  Rep.  357  ;  Kidney  v.  Cockburn,  2  Russ. 
&  Myl.  168  ;  Leigh  Peer.,  Pr.  Min.  pt.  2,  p.  140;  Hastings  Peer.,  Pr.  Min. 
196.  See  Butler  v.  Mountgarret,  6  Ir.  Law  R.,  N.  S.  77 ;  7  H.  of  L.  Cas.633, 
S.C. 

^  Marchmont  Peer.,  Pr.  Min.  345,  353.     See  Airth  Peer.,  Pr.  Min.  105. 

«  Neal  V.  Wilding,  2  Str.  1151  ;  De  Roos  Peer.,  2  Coop.  541,  542  ;  Chandos 
Peer.,  Pr.  ]\Iin.  27  ;  Stafford  Peer.,  Pr.  Min.  110  ;  Zouch  Peer.,  Pr.  Min.  276  ; 
Devon  Peer.,  by  Nicolas,  1832,  App.  pp.  44,  46;  Lisle  Peer.,  Pr.  Min.  116, 
127;  Banbury  Peer.,  Pr.  Min,  6,  117;  Vaux  Peer.,  Pr.  Min.  44;  Huntley 
Peer.,  Pr.  Min.  15  ;  Roscommon  Peer.,  Pr.  Min.  36. 

'  Smith  V.  Tebbitt,  1  Law  Rep.,  P.  &  D.  354  ;  36  L.  J.,  Pr.  &  Mat.  35,  S.  C. 

"  Vulliamy  v.  Huskisson,  3  Y.  &  C,  Ex  R.  82,  per  Ld.  Abinger ;  De  Roos 
Peer.,  2  Coop.  540,  541  ;  Lisle  Peer.,  by  Nicolas,  51,  53. 

®  Doe  JJ.  Pembroke,  11  East,  504. 

*°  Marmyon  Peer.,  Pr.  Min.  Ill  ;  Hastings  Peer.,  Pr.  Min.  200  ;  Borthwick 
Peer.,  Pr.  Min.  02  ;  Hungate  v.  Gascoigne,  2  Coop.  407,  417  ;  De  Roos  Peer., 
id.  541,  542.     See  Stokes  v.  Dawes,  4  Mason,  268. 

(3441) 


574        INSCRIPTIONS   ON  TOMBSTONES,   ETC.,   ADMISSIBLE.      [PAKT  II. 

who  was  not  a  member  of  the  family,  it  was  rejected  ;  ^  and  a 
similar  fate  attended  a  deed  of  conveyance,  wherein  the  grantors 
recited  the  death  of  a  man's  sons,  who  were  tenants  in  tail  male, 
and  declared  themselves  heirs  of  the  bodies  of  his  daughters,  who 
were  devises  in  remainder."  In  regard  to  recitals  of  pedigree  in 
old  answers  in  Chancery,  a  distinction  has  been  taken  between 
those  facts  which  were  not,  and  those  which  were,  in  controversy ; 
the  former  being  admitted  as  ordinary  declarations,  the  latter  being 
excluded  as  made  post  litem  motam.^  Similar  recitals  in  old  bills 
in  eqi'ity  are,  it  seems,  always  inadmissible,  as  these  last  are  re- 
garded as  the  mere  flourishes  of  the  draughtsman.* 


§  652.^  Inscriptions  on  tombstones,^  coffin  plates,^  mural  monu-  ^  587, 
ments,*  family  portraits,®  engravings  on  rings,'"  hatchments,  '^ 
charts  of  pedigree,'"  and  the  like,  are  also  admissible.  Those 
which  are  proved  to  have  been  made  by,  or  under  the  direction  of, 
a  deceased  relative,  are  admitted  as  his  declarations.  But  if  they 
have  been  publicly  exhibited,  and  may  therefore  be  supposed  to 
have  been  well  known  to  the  family,  their  publicity  supplies  any 
defect  of  proof  that  they  were  declarations  of  deceased  members  of 
the  family  ;  and  they  are  admitted  on  the  ground  of  tacit  and 
common  assent.'^     It  is  presumed, — though  this  is*  a  presumption 


1  Slaney  r.  Wade,  1  Myl.  &  Cr.  338.  ^  Fort  v.  Clarke,  1  Russ.  604. 

2  See  1  Ph.  Ev.  219,  220,  and  the  authorities  there  cited.  See,  also,  De 
Rocs  Peer.,  2  Coop.  543,  544. 

*  Boileau  v.  Rutlin,  2  Ex.  R.  678,  per  Parke,  B.,  citing  the  Banbury  Peer., 
as  reported  in  2  Selw.  N.  P.  75G,  10th  ed.  These  cases  appear  to  overrule 
Taylor  v.  Cole,  7  T.  R.  9,  n.  ^  Gr.  Ev.  ^  105,  in  part. 

6  Monkton  V.  Att.-Gen.,  2  Russ.  &  Myl   163  ;  Goodright  v.  Moss,  2  Cowp.  594. 

'  Chandos  Peer.,  Pr.  Min.  10  ;  Rokeby  Peer.,  Pr.  Min.  4  ;  Lovat  Peer.,  Pr. 
Min.  77. 

«  Slaney  v.  Wade,  1  Myl.  &  Cr.  338  ;  De  Roos  Peer.,  2  Coop.  544,  545. 

»  Camoys  Peer.,  6  CI.  &  Fin.  801.  '"  Vowles  v.  Young,  13  Ves.  144. 

^^  Hungate  v.  Gascoigne,  2  Coop.  414,  416. 

12  Monkton  v.  Att.-Gen.,  2  Russ.  &  Myl.  163  ;  Goodright «.  Moss,  2  Cowp.  594. 

"  Monkton  v.  Att.-Gen.,  2  Russ.  &  Myl.  163;  Davies  r.  Lowndes,  7  Scott, 
N.  R.  193,  per  Parke,  B.,  who  observes,  "'  The  ground  upon  which  the  inscrip- 
tion on  a  tombstone  or  a  tablet  in  a  church  is  admitted,  is  that  it  is  presumed 
to  have  been  put  there  by  a  member  of  the  family  cognizant  of  the  f;\cts,  and 
whose  declaration  would    be  evidence  ;  where  a  pedigree  hung   up   in   the 

(3442) 


CHAP.  IX.]        VALUE  OF  MURAL  INSCRIPTIONS  AS  EVIDENCE.  575 

which  is  doubtless  often  contrary  to  the  fact,' — that  the  relatives 
of  a  family  would  not  permit  an  erroneous  inscription  to  remain; 
and  that  a  person  would  not  knowingly  wear  a  ring  which  bore  a 
mis-statement  upon  it.^  Doubts  appear  to  have  been  entertained 
at  Nisi  Prius  respecting  the  admissibility  of  an  inscription  on  a 
tombstone  in  a  burial-ground  for  dissenters;^  but  it  is  submitted 
that  such  doubts  are  wholly  groundless;  for  not  only  has  this 
species  of  evidence  been  admitted  by  the  House  of  Lords  in 
peerage  claims/  but  inscriptions  on  foreign  monuments  have  also 
been  received.'^ 

§  GSS.*^  Mural  and  other  funereal  inscriptions  are  provable,  I  588 
as  already  shown,'  by  copies,  or  other  secondary  evidence.  Their 
value  as  evidence  depends  much  on  the  authority  under  which  they 
were  set  up,  and  on  the  distance  of  time  between  their  erection  and 
the  events  which  they  commemorate.*  If  parol  testimony  of  their 
contents  be  offered,  on  the  ground  that  the  original  monuments  are 
destroyed  or  effaced,  the  court  will  not  be  satisfied,  unless  the  prior 
existence  of  the  monuments,  and  the  genuineness  of  the  inscrip- 
tions, be  established  in  the  very  strongest  manner  that  the  circum- 
stances of  the  case  will  admit."     The  case  with  which  evidence  of 


family  mansion  is  received,  it  is  on  the  ground  of  its  recognition  by  the  mem- 
bers of  the  family. ' ' 

'  Some  remarkable  mis-statements  on  monuments  are  mentioned  in  1  Ph. 
Ev.  223,  and  n.  4.  The  author  of  the  present  work  once  saw  inscribed 
on  a  monument  in  one  of  the  London  cemeteries,  erected  to  the  memory  of 
a  young  lady,  this  startling  announcement- — "The  victim  of  a  mother's 
temper."     Sed.  qu. 

^  Per  Ld.  Erskine,  in  Vowles  r.  Young,  13  Ves.  144. 

3  Wliittuck  V.  Waters,  4  C.  &  P.  375,  per  Park,  J. 

*  Say  and  Sele  Peer.,  Serg.  Hill's  Collect,  in  Line.  Inn  Library,  vol.  26, 
p.  173. 

^  Hastings  Peer.,  Pr.  Min.  197;  Perth  Peer.,  2  H.  of  L.  Cas.  874,  876. 

^  Gr.  Ev.  ^  105,  in  part  as  to  first  five  lines. 

'  Ante,  I  4.^8;  and  see  Tracy  Peer.,  10  CI.  &  Fin.  164,  165;  Roscommon  and 
Leigh  Peer.,  cited  Hubb.  Ev.  of  Sue.  692;  Slaney  v.  Wade,  1  Myl.  &  Cr.  338;  7 
Sim.  595,  S.  C.  cor.  V.-Ch.;  Perth  Peer.,  2  H.  of  L.  Cas.  874,  876. 

®  Athenry  Peer.,  Pr.  Min.  45;  Vaux  Peer.,  Pr.  Min.  129;  Fitzwalter  Peer., 
Pr.  Min.  34. 

9  Tracy  Peer.,  10  CI.  &  Fin.  154,  181,  182,  189,  192.  See  Shrewsbury  Peer., 
7H.  ofL.  Cas.  27. 

(3443) 


576  DOCUMENT  MUST  BE  RECOGNISED  BY  FAMILY.  [pART  II. 

this  nature  can  be  mannfactured,  and  the  difficulty  of  disproving 
it  so  as  to  fix  the  witnesses  with  perjury,  show  the  necessity  of 
enforcing  this  rule  with  more  than  ordinary  strictness. 

§  654.  Though  the  publicity  of  a  document  or  inscription  is  a  §  589 
strong  fact  from  which  a  family  recognition  of  its  truth  may  be 
presumed,  yet  a  similar  presumption  may  arise  from  other  circum- 
stances; and,  therefore,  if  a  document,  though  privately  kept, 
is  clearly  proved  to  have  been  preserved  by  members  of  the 
family  as  an  authentic  memorial  of  their  pedigree,  it  Avill  be 
receivable  in  evidence  without  proof  of  its  origin.'  The  mere  pro- 
duction, however,  of  a  document  from  among  the  family  archives,^ 
and,  a  fortiori,  its  production  from  a  museum,  or  other  public 
place  of  deposit,^  will  not  be  sufficient  to  render  it  admissible, 
without  proof  that  it  was  made  or  recognised  by  some  member  of 
the  family. 

§  655.  The  question  how  far  a  pedigree,  purporting  to  have  §  590 
been  compiled,  either  wholly  or  in  part,  from  registers  and  other 
documents  which  are  not  shoicn  to  have  been  lost,  is  admissible, 
has  been  much  discussed.  The  point  arose  in  the  case  of  Davies 
V.  Lowndes,*  where  a  Welsh  pedigree,  which  was  proved  to  be 
in  the  handwriting  of  one  of  the  ancestors  of  the  defendant,  was 
offered  in  evidence,  it  being  produced  from  the  proper  custody. 
The  document  traced  the  genealogy  of  the  family  from  a  remote 
and  almost  fabulous  antiquity,  and  brought  down  the  descent  to 
the  immediate  contemporary  relatives  of  the  writer.  At  the  foot 
of  it  was  a  memorandum  in  these  words:  "Collected  from  parish 
registers,  wills,  monumental  inscriptions,  family  records,  and* 
history.  This  account  is  now  presented  as  correct,  and  as  con- 
firming the  tradition  handed  down  from  one  generation  to  another, 
to  Thomas  Lloyd,  Esq.,  of  Cwm  Gloyne,  this  4th  day  of  July, 
A.  D.  1733,  by  his  loving  kinsman,  Wm.  Lloyd."  The  counsel  for 
the  demandant  contended  that  the  entire  document  was  admis- 


1  Vaux  Peer.,  Pr.  Min.  62;  Camoys  Peer.,  6  CI.  &  Fin.  801—803. 

2  Fitzwalter  Peer.,  Pr.  Min.  45;  Lovat  Peer.,  Pr.  Min.  81;  D.  of  Devonshire 
V.  Neill,  2  L.  R.  Ir.  157—160,  per  Palles,  C.  B. 

2  Chandos  Peer.,  Pr.  Min.  11.  *  5  Bing.  N.  C.  167;  7  Scott,  21,  S.  C. 

(3444) 


CHAP.  IX.]  DAVIES  V.  LOWNDES.  577 

sible,  or  at  least  such  parts  of  it  as  showed  the  relationship  of 
those  persons  who  were  described  by  the  framer  as  then  'living, 
and  who  might  therefore  be  presumed  to  be  personally  known  to 
him;  but  the  Court  of  Common  Pleas  rejected  the  whole,  appa- 
rently on  the  ground  that  the  memorandum  bore  upon  the  face 
of  it  a  sort  of  certificate,  that  the  statement  in  the  pedigree  was 
merely  secondary  evidence  of  existing  originals  from  which  it  was 
complied,  and  that  the  absence  of  those  originals  was  not  accounted 
for;  and  that  if  any  part  of  the  pedigree  Avas  derived  from  legiti- 
mate sources,  viz.,  personal  knowledge  or  family  tradition,  it  did 
not  appear  distinctly  which  was  such  part,  and  therefore  the  whole 
was  inadmissible.' 


§  656.  The  case  was  then  brought  before  the  Exchequer  g  591 
Chamber,  and  the  conclusion  at  which  the  court  arrived,  after 
much  doubt  and  full  consideration,  was  that  part,  if  not  all,  of  the 
pedigree  was  receivable  in  evidence.  Lord  Denman,  in  pro- 
nouncing the  judgment  of  the  court,  observes,  that  "a  pedigree, 
whether  in  the  shape  of  a  genealogical  tree  or  map,  or  contained 
in  a  book,  or  mural  or  monumental  inscription,  if  recognised  by  a 
deceased  member  of  the  same  family,  is  admissible,  however  early 
the  period  from  which  it  purports  to  have  been  deduced.  On 
what  ground  is  this  admitted  ?  It  may  be  that  the  simple  act  of 
recognition  of  the  document,  and  consequent  acknowledgment  of 
the  relationship  stated  in  it,  by  a  member  of  the  family,  is  some 
evidence  of  that  relationship, /ro?w  tchatever  sources  his  information 
may  have  been  derived,  because  he  was  likely,  from  his  situation, 
to  inquire  into  the  truth  of  such  matters,  and  from  his  means  of 
knowledge,  to  ascertain  it."^  His  lordship,  after  referring  to  the 
language  of  Lords  Brougham^  and  Cottenham,*  and  of  the  Vice- 
Chancellor  of  England,'^  as  giving  great  countenance  to  the 
opinion,  that  the  recognition  by  a  relative  of  a  statement  of 
relationship  is  evidence  of  the  truth  of  that  statement,— adds,  "If 


^  Per   Ld.  Denman,  in  Davics  v.  Lo^vndes,  7   Scott,  N.  R.  211;  6  M.  &  Gr. 
525,  S.  C. 

^  7  Scott,  N.  R.  211,  212;    6  M.  &  Gr.  525,  526,  S.  C. 
3  Monkton  v.  Att-Gen.,  2  Russ.  &  Myl.  156. 

*  Slaney  v.  Wade.  1  Myl.  &  Cr.  355.  *  Slaney  v.  Wade,  7  Sim.  611. 

(3445) 


678  ARMORIAL  BEARINGS  ADMISSIBLE.  [PAET  II. 

this  be  a  correct  view  of  the  law,  the  pedigree  in  question  was 
admissible,  because  it  was  certainly  acknowledged  by  Wm.  Lloyd 
to  be  correct."  The  judgment  then  continues  thus  : — "  But  the 
reason  why  a  pedigree,  when  made  or  recognised  by  a  member  of 
a  family,  is  admissible,  may  be,  that  it  is  presumably  made  or 
recognised  by  him  in  consequence  of  his  personal  knowledge  of 
the  individuals  therein  stated  to  be  relations,  or  of  information 
received  by  him  from  some  deceased  member  of  what  the  latter 
knew,  or  heard  from  other  members  who  had  lived  before  his  time. 
And  if  so,  it  may  well  be  contended,  that,  if  the  facts  rebut  that 
presumption,  and  show  that  no  part  of  the  pedigree  was  derived 
from  proper  sources  of  information,  then  the  whole  of  it  ought  to  be 
rejected;  and  so  also  if  there  be  some,  but  an  uncertain  and  unde- 
fined part,  derived  from  improper  sources.  But  when  the  framer 
speaks  of  individuals,  whom  he  "describes  as  living,  we  think  the 
reasonable  presumption  is  that  he  knew  them,  and  spoke  of  his 
own  personal  knowledge,  and  not  from  reference  to  registers,  wills, 
monumental  inscriptions,  and  family  records  or  history;  and,  con- 
sequently, to  that  extent,  the  statements  in  the  pedigree  are  derived 
from  a  proper  source,  and  are  good  evidence  of  the  relationship  of 
those  persons." ' 


§  657.  Armorial  bearings,  whether  carved  on  wood,  painted  on  ^  590 
glass,  engraved  on  monuments  or  seals,  or  otherwise  emblazoned, 
are  also  admissible  in  cases  of  pedigree;  not  only  as  tending  to 
prove  that  the  person  who  assumed  them  was  of  the  family  to  which 
they  of  right  belonged,  but  as  illustrating  the  particular  branch 
from  which  the  descent  was  claimed,  or  as  showing,  by  the  impal- 
ings  or  quarterings,  the  nature  of  the  blazonry,  or  the  shape  of  the 
shield,  what  families  were  allied  by  marriage,  or  what  members  of 
the  family  were  descended  from  an  illegitimate  stock,  or  were 
maidens,  widows,  or  heiresses.^     The  value  of  this  evidence  depends 


1  7  Scott,  N.  R.  213;  6  M.  &  Gr.  527,  S.  C. 

2  HarL  MS.  1836,  6141;  Hervey  v.  Hervey,  2  W.  Bl.  877;  Chandos  Peer., 
Pr.  Min.  6,  24,  37,  40,  49;  Huntingdon  Peer.,  by  Bell,  280;  Att.-Gen.'s  Rep., 
359,  S.  C;  Hastings  Peer.,  Pr.  Min.  313;  Co.  Lit.  27,  a.;  Shrewsbury  Peer., 
7  H.  of  L.  Cas.  10;  Fitzwalter  Peer.,  Pr.  Min.  49;  Camoys  Peer,,  Pr.  Min. 
58;  1  Sid.  354. 

(3446) 


CHAP.  IX.]  ARMORIAL  BEARINGS  ADMISSIBLE.  579 

almost  wholly  upon  its  antiquity;  and  as,  since  the  Revolution,' 
the  heralds  have  exercised  no  authority  in  correcting  usurpation, 
the  use  of  armorial  bearings  subsequently  to  that  date  is  entitled 
to  but  little,  if  any,  weight  as  evidence  of  genealogy."'  When 
proof  of  this  nature  is  offered,  some  ofScer  of  the  Heralds'  College 
should  be  in  attendance,  to  explain  the  meaning  of  the  occult 
science.^ 


'  The  date  of  the  last  Herald's  visitation  was  1686,  and  of  the  first  was 
1528.     See  Hubb.  Ev.  of  Sue.  542. 

2  1  Ph.  Ev.  244;  Hubb.  Ev.  of  Sue.  696. 

^  See  Chandos  Peer.,  Pr.  Min.  6,  24,  37,  40,  49.  Besides  the  different 
species  of  evidence  enumerated  above,  recourse  may  occasionally  be  had  to 
the  Heralds'  books,  inquisitions  post  mortem,  parish  books,  registers,  &c. ; 
but  as  these  are  admissible,  not  as  the  hearsay  evidence  of  relatives,  but  as 
public  documents,  the  law  respecting  them  will  be  discussed  hereafter: 
Part  ill.  Chap.  iv.     See  De  Roos  Peer.,  2  Coop.  545 — 552. 


16  LAW  OF  EVID.— V.  II.  (34475 


580  HEARSAY  IN  SL'ri'URT  OF  ANCIENT  POSSESSION.        [PART  11, 


CHAPTER  X. 

ANCIENT    POSSESSION. 

§  658.  A.  THIRD  EXCEPTION  to  the  nile  rejecting  hearsay  evidence  ?  •'i'J.'> 
is  allowed  in  favour  of  ancient  documents  when  tendered  in  support 
of  ancient  possession.  By  the  term  "  ancient  documents,"  are 
meant  documents /»ore  f/iaii  thirty  years  old;  and  as  these  often 
furnish  the  only  attainable  evidence  of  ancient  possession,  the 
law,  on  the  principle  of  necessity,  allows  them  to  be  read  in  courts 
of  justice  on  behalf  of  persons  claiming  under  them,  and  against 
persons  in  no  way  privy  to  them,  provided  that  they  are  not  mpre 
narratives  of  past  events,  but  that  thej  purport  to  have  formed  a  part 
of  the  act  of  ownership,  exercise  of  right,  or  other  transaction  to 
which  they  relate.  No  doubt  this  species  of  proof  deserves  to  be 
scrutinised  with  care;  for,  first,  its  effect  is  to  benefit  those  who  are 
connected  in  interest  with  the  original  parties  to  the  documents, 
and  from  whose  custody  they  have  been  produced;  and  next,  the 
documents  are  not  proved,  but  are  only  presumed  to  have  consti- 
tuted part  of  the  res  gestae.  Still,  as  forgery  and  fraud  are,  com- 
paratively speaking,  of  rare  occurrence,  and  as  a  fabricated  deed 
will,  generally,  from  some  anachronism  or  other  inconsistency, 
afford  internal  evidence  of  its  real  character,  the  danger  of  ad- 
mitting these  documents  is  less  than  might  be  supposed;  and,  at 
any  rate,  it  is  deemed  more  expedient  to  run  some  risk  of  occa- 
sional deception,  than  to  permit  injustice  to  be  done  by  strict 
exclusion  of  what,  in  many  cases,  would  turn  out  to  be  highly 
material  evidence.  On  a  balance,  therefore,  of  evils,  this  kind  of 
proof  has  for  many  years  past  been  admitted,  subject  to  certain 
qualifications,  which  will  now  be  stated.' 


§  659.  And  first,  care  is  especially  taken  to  ascertain  the  g'enttiJK^-    g  594 
ness  of  the  ancient  documents  produced;  and   this  may  in  general 


^  See  1  Ph.  Ev.  27:?;  1  St.  Ev.  67;  Gr.  Ev.  ?  141;  and  Best,  Ev.  615. 

(3448) 


CHAP.  X.]  LEGAL  MEANING  OF  PROPER  CUSTODY.  581 

be  shown,  prima  facie,  by  proof  that  they  come  from  the  x>^'(^P^^ 
custody?  As  this  proof  is  by  no  means  conliaed  to  documents 
tendered  in  support  of  ancient  possession,  but  is  required  in  most 
cases  where  deeds,  papers,  or  writings  are  rendered  admissible 
by  any  rule  of  law  without  strict  proof  of  their  authenticity,  it 
becomes  highly  important  to  explain,  with  as  much  precision  as 
possible,  the  legal  meaning  of  the  words  "  proper  custody."  The 
subject,  therefore,  will  be  illustrated  in  this  place  once  for  all,  by 
a  reference  to  the  leading  decisions  which  bear  upon  it  ;  and 
attention  will  first  be  drawn  to  the  language  used  by  Chief  Justice 
Tindal  in  the  House  of  Lords,  while  pronouncing  the  opinion  of 
the  judges  in  the  important  case  of  the  Bishop  of  Meath  v.  The 
Marquis  of  Winchester.^ 

§  6G0.  "  Documents,"  said  his  lordship,  "  found  in  a  place  in  •  §  595 
which,  and  under  the  care  of  persons  with  whom,  such  papers 
might  naturally  and  reasonably  be  expected  to  be  found,  are 
precisely  in  the  custody  which  gives  authenticity  to  documents 
found  within  it;  for  it  is  not  necesary  that  they  should  be  found  in 
the  best  and  most  2yroper place  of  deposit.  If  documents  continued 
in  such  custody,  there  never  would  be  any  question  as  to  their 
authenticity;  but  it  is  when  documents  are  found  in  other  than 
their  proper  place  of  deposit  that  the  investigation  commences, 
whether  it  was  reasonable  and  natural,  under  the  circiimstances 
in  the  particular  case,  to  expect  that  they  should  have  been  in  the 
place  where  they  are  actually  found;  for  it  is  obvious,  that,  while 
there  can  be  only  one  place  of  deposit  strictly  and  absolutely 
proper,  there  may  be  many  and  various,  that  are  reasonable  and 
probable,  though  differing  in  degree  ;  some  being  more  so,  some 
less  ;  and  in  those  cases  the  proposition  to  be  determined  is, 
whether  the  actual  custody  is  so  reasonably  and  probably  to  be 
accounted  for,  that  it  impresses  the  mind  with  the  conviction  that 
the  instrument  found  in  such  custody  must  be  genuine.  That 
such  is  the  character  and  description  of  the  custody,  which  is  held 


'  See  ante,  §  432,  et  seq. 

'  3  Bing.  N.   C.  200—202;  10  Bligli,    462—164 ,  S.   C.     See,  also,    Doe   v. 
Samples,  8  A.  &  E.  154,  per  ratteson,  J.;  Doe  r.  Phillips,  8  Q,  B.  158. 

(3449) 


582  MEAMNG  OF  PROPER  CUSTODY  ILLUSTRATED.  [PART  II, 

sufficiently  genuine  to  render  a  dociiment  admissible,  appears  from 
all  the  cases."  ' 


§  661.  Tlius,  on  the  one  hand,  old  grants  to  abbeys  have  been  ?  596 
rejected  as  evidence  of  private  rights,  where  the  possession  of  them 
has  appeared  altogether  unconnected  with  the  persons  who  had  any 
interest  in  the  estate.^  So,  a  manuscript  found  in  the  Heralds' 
Office,  eaumerating  the  possessions  of  a  dissolved  monastery,^ — 
a  curious  manuscript  book,  entitled  the  "  Secretum  Abbatis,"  pre- 
served in  the  Bodleian  Library  at  Oxford,  and  containing  a  grant  to 
an  abbey,* — an  old  grant  to  a  priory,  brought  from  the  Cottonian 
MSS.  in  the  British  Museum,^ — and  two  ancient  writings,  purport- 
ing respectively  to  be  an  endowment  of  a  vicarage  and  aninspeximus 
of  the  endowment  under  the  seal  of  a  bishop,  both  of  which  had 
been  purchased  at  a  sale  as  part  of  a  private  collection  of  manu- 
Bcripts,'' — have  been  held  to  be  inadmissible,  the  possession  of  the 
documents  being  unconnected  with  the  interest  in  the  property.^ 
So,  also,  as  the  registers  of  burials  and  baptisms  are  required  by 
the  Act  of  52  G.  3,  c.  146,  §§  1  &  5,  to  be  kept  by  the  clergyman 
of  the  parish  either  at  his  own  residence  or  in  the  church,  such 
registers,  when  produced  from  the  house  of  the  parish  clerk,  have, 
in  the  absence  of  all  explanation  on  the  subject,  been  rejected,  as 
not  coming  from  the  proper  custody.^  So,  the  courts  have  on 
several  occasions  refused  to  admit  terriers,  which  have  been  found 
among  the  papers  of  a  mere  landholder  in  the  parish,®  because  the 
legitimate  repository  for  such  documents  would  be  either  the  registry 


'  For  the  American  authorities,  see  Burr  v.  Gratz,  4  Wheat.  213,  221  ;  Winn 
V.  Patterson,  9  Pet.  663—675.  Clarke  v.  Courtney,  5  Pet.  319,  344:  Hewlett 
V.  Cock,  7  Wend.  371,  374;  Duncan  v.  Beard,  2  Nott  &  M'C.  400;  Middleton 
r.  Mass,  id.  55.  '  3  Bing.  N.  C.  201,  per  Tindal,  C.  J. 

"  I-ygon  V.  Strutt,  2  Anstr.  601. 

*  Michell  V.  Ral)hetts,  cited  3  Taunt.  91. 

^  Swinnerton  v.  M,  of  Stafford,  3  Taunt  91. 

«  Potts  V.  Durant,  3  Anstr.  789;  2  Eag.  &  Y.  432,  S.  C. 

'  Bp.  of  Meath  v.  M.  of  Winchester,  3  Bing.  N.  C.  201,  per  Tindal,  C.  J. 

8  Doe  V.  Fowler,  19  L.  J.,  Q.  B.  15;  14  Q.  B.  700,  S.  C. 

«  Atkins  V.  Hatton,  2  Anstr.  386;  3  Gwill.  1406;  4  Wood's  Decrees,  410  ; 
2  Eag.  «&  Y,  403,  S.  C;  Atkins  v.  Ld.  Willoughby  De  Broke,  4  Wood's  De- 
crees, 424. 

(3450) 


CHAP.  X.]         MEANING  OF    PROPER  CUSTODY  ILLUSTRATED.  583 

of  the  bishop,  the  registry  of  the  archdeacon,  or  the  church  chest.' 
lu  the  case  of  Eaudolph  v.  Gordon"  this  doctrine  was  cariiedto  its 
extreme  limit.  There,  the  defendant,  who  was  grandson  of  a  former 
rector,  produced  a  book,  which  purported  to  be  the  book  of  such 
rector;  but  as  he  did  not  show  that  he  had  found  it  among  his 
grandfather's  papers,  or  that  it  had  come  into  his  possession  in  a 
legitimate  manner,  it  was  rejected. 

§  662.  On  the  other  hand,  the  poor-house  of  a  union  has  been  §  597 
considered  not  an  improper  repository  for  the  documents  of  any 
parish  within  the  union  ;^  and  an  old  chartulary  of  a  dissolved 
abbey  has  been  admitted,  when  found  in  the  possession  of  the  owner 
of  part  of  the  abbey  lands,  though  not  of  the  princqjal  2yro2yrietoi\* 
The  strictly  proper  custody  for  such  a  document  as  this  last  would 
have  been  the  Augmentation  Office;'^  and  as  between  the  different 
proprietors  of  the  abbey  lands,  it  might  naturally  be  supposed  to 
have  been  deposited  with  the  largest;  still  the  court  held,  that  its 
actual  place  of  custody  was  one,  where  it  might  reasonably  be  ex- 
pected to  be  found.®  So,  an  old  book  of  a  collector  of  tithes  would 
be  equally  well  authenticated,  whether  produced  from  the  custody 
of  the  successor,  or  executor,  of  the  incumbent,  or  from  the  hands 
of  the  successor  of  the  collector.'  So,  also,  an  unproved  will,  more 
than  thirty  years  old,  disposing  of  real  and  personal  estate,  and  pro- 
duced from  the  custody  of  a  younger  son  of  the  testator,  who,  in 
common  with  his  brothers,  derived  a  benefit  under  it,  has  been  ad- 
mitted, though  it  was  contended  that  it  should  have  been  deposited 
in  the  ecclesiastical  court  of  the  diocese.^ 


1  Armstrong!'.  Hewett,  4  Price,  216;  3  Eag.  &  Y.  835,  S.  C;  Potts  v.  Durant, 
3  Anstr.  795;  3  Gwill.  1450,  S.  C. 

2  5  Price,  312.     See,  also,  Manby  v.  Curtis,  1  Price,  225. 

3  Slater  v.  Hodgson,  2  Sess.  Ca.  488;  9  Q.  B.  727,  S.  C. 

*  Bullen  V.  Michel,  2  Price,  399,  413;  4  Dow,  297;  4  Gwill.  1779;  3  Eag.  & 
Y.  757.  S.  C.  See,  also,  Mytton  d.  Thornbury,  29  L.  J.,  M.  C.  109;  S.  C.  uom. 
K.  V.  Mytton,  2  E.  &  E.  557. 

^  Per  Lcl.  Eedesdale,  in  Bullen  v.  Michel,  4  Dow,  321. 

«  Bp.  of  Meath  v.  M.  of  Winchester,  3  Bing.  N.  C.  201,  202,  per  Tindal, 
C.  J.  ^  Id. ;  referring  to  Jones  v.  Waller,  3  Gwill.  346. 

®  Doe  V.  Pearce,  2  M.  &  Rob.  240,  per  Coleridge,  J. ;  Andrew  v.  Motley,  12 
Com.  B.,  N.  S.  526. 

(3451) 


584  WHEN  CUSTODY  MUST  BE  PROVED  BY  KVIDEXCE.       [PART  II. 

§  6G3.  "When  an  expired  lease  was  produced  from  the  custody  of  §  597 
the  lessor,  and  proof  was  given  that  he  had  received  it  from  a 
former  occupier  of  the  demised  premises,  who  had  paid  for  several 
years  the  precise  rent  reserved  by  it,  and  who,  subsequently  to  the 
expiration  of  the  term,  had  procured  it  from  two  strangers  who 
claimed  no  interest  in  it,  the  court  held  the  deed  to  be  admissible, 
without  proof  in  what  manner  it  had  come  into  the  hands  of  these 
strangers;  because,  by  the  act  of  giving  it  up  to  the  occupier,  they 
admitted  his  right  to  the  possession  of  it,  and  were  consequently 
presumed  to  have  held  it  on  his  account.'  Again,  a  case  stated  for 
counsel's  opinion  by  a  deceased  bishop,  respecting  his  right  of  pre- 
sentation to  a  living,  has  been  admitted  against  a  subsequent  bishop 
of  the  same  see,  on  a  question  touching  the  same  right,  though  the 
paper  was  not  found  in  the  public  registry  of  the  diocese,  but 
among  the  private  family  documents  of  the  descendants  of  the 
former  bishop.^  So,  where  a  mortgagee  in  fee  brought  an  action  of 
ejectment,  and  the  defendant's  case  was,  that  the  mortgagor,  his 
father;  had,  previously  to  the  mortgage,  conveyed  the  estate  to 
trustees  in  settlement,  reserving  to  himself  only  a  life  interest,  the 
court  permitted  the  son  to  put  in  the  deed  of  settlement,  it  being 
more  than  thirty  years  old,  though  it  was  produced  from  among  the 
papers  of  his  late  father,  against  whom  its  provisions  were  intended 
to  operate;  and  though  it  was  strongly  urged  that  the  trustees  or 
their  representatives  were  the  parties  entitled  to  its  custody;  and 
the  more  especially  so,  as  by  the  deed  having  been  permitted  to 
remain  with  the  settlor,  he  had  been  enabled  to  practise  a  fraud  on 
the  mortgagee.^ 


§  604.   Some  doubt  exists  whether  the  custody  of  a  document    ?  598 
must  be  proved  by  a  sworn  witness,  when  it  purports  on  its  face  to 
belong  to  the  party  who  tenders  it  in  evidence.     In  one  or  two  set- 
tlement cases,  the  respondents  have  been  permitted  to  produce  old 
certificates,  which  purported  to  have  been  granted  to  them  by  the 


1  Rees  V.  Walters,  3  M.  &.  W.  .527. 

^  Bp.  of  Meath  v.  M.  of  Winchester,  3  Biiig.  N.  C.  183,  202,  203. 
'  Doe,  V.  Samples,  8  A.  &  E.  151;  3  N.   &  P.  254,  S.  C.     See,  also,  Bertie  v. 
Beaumont,  2  Price,  307;  Ld.  Trimlestown  r.  Kemmis,  9  CI.  &  Fin.  774,  775. 

(3452) 


CHAP.  X.]   CORROBORATIVE  PROOF  OF  ANCIENT  DOCUMENTS.      585 

appellants,  without  giving  any  account  respecting  their  custody;' 
but  in  the  case  of  Evans  v.  Rees,  where,  on  a  question  of  boundary, 
the  plaintiff's  counsel  proposed  to  read  certain  manor-books  without 
proving  the  custody  whence  they  came,  on  the  ground  that  they 
belonged  to  the  lord,  who  was  admitted  to  be  the  real  plaintiff,  the 
court  held  that  they  could  not  be  read;  Mr.  Justice  Coleridge  ob- 
serving, that  unless  some  witness"  was  sworn  for  the  purpose  of 
proving  their  custody,  they  might  have  been  procured  from  a  grocer's 
shop."  If,  however,  the  witness  producing  the  document  can  swear 
that  he  received  it  from  the  representative  of  the  person  originally 
entitled  to  it,  as  a  paper  which  had  belonged  to  such  person,  this 
evidence  will  in  ordinary  cases  be  sufficient,  without  calling  the 
representative  himself  to  explain  how  he  became  possessed  of  the 
document.* 

§  665.  An  able  writer  on  the  law  of  evidence  has  urged,  that  in  §  -''^91^ 
order  to  render  ancient  documents  admissible,  proof,  if  possible, 
must  be  given  of  some  act  done  with  reference  to  them,  and  that, 
where  the  nature  of  the  case  does  not  admit  of  such  proof,  acts  of 
modern  enjoyment  must  at  least  be  shown.*  This  doctrine,  how- 
ever, would  seem  to  be  advanced  in  somewhat  too  bold  a  manner, 
and  to  be  unsupported  by  the  current  of  modern  decisions;  for 
although  it  is  perfectly  true  that  the  mere  production  of  an  ancient 
document,  unless  supported  by  some  corroborative  evidence  of  acting 
under  it,  or  of  modern  possession,  would  be  entitled  to  little,  if  any, 
weight,  still  there  appears  to  be  no  strict  rule  of  law,  which  would 
authorise  the  judge  in  withdrawing  it  altogether  from  the  con- 
sideration of  the  jury  : — in  other  words,  the  absence  of  proof  of 
possession  affects  merely  the  iveight,  and  not  the  admissibility,  of 
the  instrument.^ 

§  6G6    Thus,   in   Rogers  v.   Allen,  where,  in   order  to  prove  a    ^ 
prescriptive  right  of    fishery  as  appurtenant  to  a  manor,    ancient 
licences  to  fish  in  the  locus  in  quo,  which  appeared  on  the  court- 

1  R.  V.  Ryton,  5  T.  R.  259;  R.  v.  Netherthong,  2  M.  &  Sel.  337. 
MO  A.  &  E.  151, 154. 

3  Earl  V.  Lewis,  4  Esp.  1,  per  Heath,  J.     See  Doe  v.  Keeling,  11  Q.  B.  884. 
*  1  Ph.  Ev.  276,  278. 

^  Malcomson  v.  O'Dea,  10  H.  of  L.   Cas.   614,  015;  Bristow  v.  Cormican,  3 
App.  Cas.  668,  per  Ld.  Blackburn,  in  H.  L.  (I.). 

(3453) 


586  PRESUMPTIONS  IN  FAVOUR  OF  ANCIENT  DOCUMENTS.    [PART  II. 

rolls,  and  were  granted  by  former  lords  in  consideration  of  certain 
rents,  were  tendered  in  evidence,  Mr.  Justice  Heath,  after  argument, 
held  that  they  were  admissible  without  any  proof  of  the  rents 
having  been  paid;  but  he  added  that,  to  givo  them  any  iveujht,  it 
must  be  shown  that  in  latter  times  payments  had  been  made  under 
licences  of  the  same  kind,  or  that  the  lords  of  the  manor  had  exer- 
cised other  acts  of  ownership'  over  the  fishery,  which  had  been 
acquiesced  in.'"  So,  in  the  case  of  the  ]3uke  of  Bedford  v.  Lopes, 
Bart.,  which  was  an  action  brought  to  try  the  title  to  the  bed  of  a 
river,  after  proof  of  a  grant  from  Henry  YIII.,  two  counterparts  of 
leases  were  produced  from  the  Duke's  muniment  room,  comprehend- 
ing the  soil  in  question.  No  payment  by  a  tenant  was  proved,  nor 
any  modern  act  of  ownership;  but  Lord  Denman  admitted  the 
instruments  as  coming  from  the  right  custody,  observing  that  no 
circumstance  in  the  case  threw  suspicion  upon  them,  and  that  "the 
absence  of  other  kinds  of  proof  was  mere  matter  of  observation."  ^ 
Again,  in  one  of  the  numerous  ejectments  brought  by  Lord  Egre- 
mont,^  it  became  necessary  to  show  that  the  land  in  question  had 
.been  part  of  the  estate  of  the  lessor's  ancestor,  Sir  William  Wynd- 
ham;  and  in  order  to  establish  this  fact,  a  document  was  produced 
from  the  muniment  room  of  the  property  inherited  from  Sir  William, 
which  appeared  to  be  a  counterpart  of  a  lease  of  this  land  made  by 
him ;  but  it  purported  to  be  executed  only  by  the  lessee,  and  no 
proof  was  given  of  actual  possession  under  it.  The  Court  of 
Queen's  Bench,  after  consulting  with  some  of  the  other  judges,  held 
that  this  deed  was  admissible  in  evidence. 


§  GG7.*  Under  the  above  qualifications,  ancient  documents    are    I  601 


1  1  Camp.  309,  311;  Malcomson  v.  O'Dea,  10  H.  of  L.  Cas.  593,  616. 

^  Cited  in  argument,  3  Q.  B.  G23. 

^  Doe  V.  Pulman,  3  Q.  B.  622,  026.  See,  further,  Clarkson  v.  Wooclhouse, 
5  T.  R.  413,  n.,  per  Ld.  Mansfield;  3  Doug.  189,  S.  C;  Brett  v.  Beales,  M.  & 
M.  418.  per  Ld.  Tenterdeu;  Tisdall  v.  Parnell,  14  Ir.  Law  R.,  N.  S.  123;  Doe 
V.  Passingham,  2  C.  &  P.  444,  per  Burrough,  J. ;  Rancliflfe  v.  Parkyns,  6  Dow, 
202,  per  Ld.  Eldon;  McKenire  v.  Fraser,  9  Ves.  5;  Jackson  v.  Blanshan,  3 
Johns.  292,  297,  298;  Crowder  v.  Hopkins,  10  Paige,  190;  Jackson  v.  Luquere, 
SCowen,  221,  225;  Jackson  v.  Lamb,  7  id.  431;  Barr  v.  Gratz,  4  Wheat.  213, 
221;  Hewlett  r.  Cock,  7  Wend.  371,  373,  374. 

*  Gr.  Ev.  I  144,  in  great  part. 

(3454) 


CHAP.  X.]       PRESUxAIPTlOKS  IN  FAVOUR  OF  ANCIENT  DOCUMENTS.       587 

receivable  as  evidence  that  the  transactions  to  which  they  relate 
actually  occurred.  And  though  they  are  usually  spoken  of  as  hear- 
say evidence  of  ancient  possession,  and,  as  such,  are  said  to  be 
admitted  in  exception  to  the  general  rule  ;  yet  they  seem  rather  to 
be  parts  of  the  res  gestte,  and  therefore  admissible  as  original 
evidence,  on  the  principle  already  discussed.'  An  ancient  deed, 
which  has  nothing  suspicious  about  it,  is  presumed  to  be  genuine 
without  express  proof,  the  witnesses  being  presumed  dead  ;"  and, 
if  found  in  the  proper  custody,  and  corroborated  by  evidence  of 
ancient  or  modern  corresponding  enjoyment,  or  by  other  equivalent 
or  explanatory  proof,  it  will  be  presumed  to  have  constituted  part 
of  the  actual  transfer  of  pi'operty  therein  mentioned  ;  because  this 
is  the  usual  course  of  such  transactions.  The  residue  of  the 
transaction  may  be  as  unerringly  inferred  from  the  existence  of 
genuine  ancient  documents,  as  the  remainder  of  a  statute  may  be 
made  out  from  an  existing  torso,  or  a  perfect  skeleton  from  the 
fossil  remains  of  a  part. 

1  Ante,  I  583,  et  seq.  ^  ^^^^^  |  gy^ 


(3455) 


688  DECLARATIONS  AGAINST  INTEREST,  WHEN  ADMISSIBLE.   [PART  II. 


G02 


CHAPTER  XI. 

DECLARATIONS    AGAINST    INTEREST. 

§  6G8.'  A  FOURTH  EXCEPTION  to  the  rule  rejecting  hearsay  ? 
evidence  is  allowed  in  favour  of  declarations  made  by  persons 
since  deceased  against  their  pecuniary  or  proprietary  interest.'^ 
The  ground  upon  which  this  evidence  is  received,  is  the  extreme 
improbability  of  its  falsehood.  The  regard  which  men  usually  pay 
to  their  own  interests  is  considered  a  sufficient  security  against 
any  wilful  mis-statement,  and  affords  also  a  reasonable  inference 
that  the  declarations  or  entries  were  not  made  under  any  mistake 
of  fact,  or  want  of  information  on  the  part  of  the  declarant.  The 
danger  of  any  fraud  in  the  statement  will  be  still  less  dreaded,  if 
it  be  borne  in  mind,  that  the  evidence  is  not  receivable  till  after 
the  death  of  the  declarant,  and  that  if  the  opponent  can  show  that 
the  statement  was  made  with  any  sinister  motive,  it  will  at  once 
be  rejected.  The  ordinary  tests  of  truth,  afforded  by  the  adminis- 
tration of  an  oath  and  by  cross-examination,  are  certainly  here 
wanting ;  but  their  place  is  in  some  measure  supplied  by  the  cir- 
cumstances of  the  declarant ;  and  the  inconveniences  that  would 
result  from  the  exclusion  of  evidence,  having  such  guarantees  for 
its  accuracy  in  fact  and  its  freedom  from  fraud,  are  rightly  con- 
sidered much  greater  in  general,  than  any  which  are  likely  to  be 
experienced  from  its  admission.^ 


§  669.  In   order  to  render  declarations  against  interest  admis-    §  6n:5 
sible  as  such,  it  must  appear,  either  by  proof  or  by  presumption,* 
that    the    declarant    is    dead;''  and    the    mere    fact    that    he    has 

'  Gr.  Ev.  ?  148,  in  great  part. 

2  Sussex  Peer.,  11  CI.  &  Fin.  103—114;  Higham  r.  Ri-lgway,  10  East,  109; 
2  Smith,  L.  C.  270,  S.  C. ;  id.  281,  n.;  Short  v.  Lee,  2  Jac.  &  W.  464,  488,  per 
Plumer,  M.  K. 

^  1  Ph.  Ev.  294.  *  Doe  v.  Michael,  17  Q.  P..  27(5;  ante,  ?  198. 

^  Phillips  V.  Cole,  10  A.  &  E.  106,  111,  per  Ld.  Deniuan  ;  Spargo  v.  Brown, 

(3456) 


CHAP.    XI.]  DECLARANT    MUST    BE    DEAD.  589 

absconded  abroad  in  consequence  of  a  criminal  charge,  or  that  he 
is  otherwise  out  of  the  power  of  the  party  to  produce  as  a  witness, 
will  not  be  sufficient.'  It  would  seem,  also,  from  many  of  the 
cases,  that  the  declarant  must  be  shown  to  have  had  a  competent, 
if  not  a  peculiar,  knowledge  of  the  facts,  which  form  the  subject 
matter  of  the  declaration  ;  -  and,  indeed,  in  the  Sussex  Peerage 
claim,  the  rule  was  so  laid  down.^  In  all  these  cases,  however, 
the  "  law "  was  "  taken  for  granted  ;"  *  and  in  Crease  v.  Barrett, 
where  the  question  was  expressly  raised,  the  Court  of  Exchequer 
after  argument  held,  "  that  it  was  not  necessary  that  the  deceased 
person  should  have  his  own  knowledge  of  the  fact  stated, — that, 
if  the  entry  charged  himself,  the  whole  of  it  became  admissible 
against  all  persons, — and  that  the  absence  of  such  knowledge  went 
to  the  weight,  and  not  to  the  admissibility,  of  the  evidence."  ^ 

§  670.  It  was  long  a  matter  of  doubt  in  Westminster  Hall,  I  604 
whether  the  absence  of  all  interest  to  misrepresent,  coupled  with 
peculiar  knowledge  in  the  declarant,  would  not  render  his  declara- 
tions admissible  after  his  death  :  ®  but  it  is  now  fully  determined, 
first,  that  the  statement  or  entry  must  be  against  the  interest  of 
the  person  making  it ;  ^  and,  secondly,  that  the  interest  must  be 
of  a  pecuniary  or  proprietary  nature.^     These  points  were  decided 


9  B.  &  C.  935  ;  Smith  v.  Wliittingham,  6  C.  &  P.  78.  See  ante,  §  641,  and 
post,  ?  703. 

'  Stephen  r.  Gwen.ap,  1  INI.  &  Rob.  120,  per  Alderson,  J. 

■^  Higham  v.  Ridgway,  10  East,  122  jier  P.ayley,  J.;  ISIarks  v.  Lahee,  3 
Bing.  N.  C.  419,  per  Tindal,  C.  J.;  420,  per  Park,  J.;  421,  per  Vaughau,  J.; 
Barker  v.  Ray,  2  Russ.  76,  per  Ld.  Eldon  ;  Short  v.  Lee,  2  Jac.  &  W.  475, 
488,  489,  per  Plumer,  M.  R. 

^  11  CI.  &  Fin.  112,  per  Ld.  Brougham  and  Ld.  Denman. 

*  As  to  which,  see  per  Ld.  Denman  in  O'Connell  ;;.  The  Queen,  11  CI.  & 
Fin.  373. 

M  C.  M   &  R.  925  ;  5  Tyr.  464,  465,  S.  C. 

^  See  per  Ld.  Hardwicke  in  Glynn  v.  Bk.  of  England,  2  Ves  Sen.  38  ;  per 
Le  Blanc,  J.,  in  Higham  v.  Ridgway,  10  East,  120,  121  ;  per  Bayley,  J.,  in 
Gleadow  v.  Atkin,  1  C.  &  M.  424  ;  per  lid.  Ellenborough  in  Roe  v.  Rawlings, 
7  East,  290  ;  and  Daly  v.  Wilsoii,  Milw.,  Ec.  Ir.  R.  658—660. 

'  Berkeley  Peer.,  Pr.  Min.  655,  cited  and  confirmed  in  Sussex  Peer.,  11  CI. 
&  Fin.  108,  109. 

*  Sussex  Peer.,  11  CI.  &  Fin.  103 — 114  ;  explained   and  acted  upon  by  Ld. 

(3457) 


590  ENTRY  AGAINST  PECUNIARY  OR  PROPRIETARY  INTEREST.  [PART  II. 

in  the  Sussex  Peerage  case,  where,  in  order  to  prove  the  marriage 
of  the  Duke  of  Sussex  and  Lady  Augusta  Murray,  statements 
made  by  the  clergyman,  since  deceased,  who  had  married  them  at 
Rome,  were  tendered  in  evidence,  on  the  ground  that  they  were 
clearly  against  his  interest,  inasmuch  as  they  related  to  an  act 
which  rendered  him  liable  to  prosecution  while  living,  or  which,  at 
least,  he  believed  to  be  illegal.  Lord  Chancellor  Lyndhurst,  in 
declaring  his  opinion  that  this  evidence  should  be  rejected,  ob- 
served, "  It  is  not  true  that  the  declarations  of  deceased  persons  are 
in  all  circumstances  receivable  in  evidence,  when  in  some  way  or 
other  they  might  injuriously  afPect  the  interest  of  the  party  making 
them.  Nor  is  it  true,  that  because,  while  living,  a  party  would  be 
excused  from  answering  as  to  certain  facts,  his  declarations  as  to 
those  facts  become  evidence  after  his  death.  These  are  not  corre- 
lative nor  corresponding  propositions."  '  Lord  Brougham  also  added, 
"  To  say,  if  a  man  should  confess  a  felony  for  which  he  would  be 
liable  to  prosecution,  that  therefore,  the  instant  the  grave  closes 
over  him,  all  that  was  said  by  him  is  to  be  taken  as  evidence  in 
every  action  and  prosecution  against  another  person,  is  one  of  the 
most  monstrous  and  untenable  propositions  that  can  be  advanced.".^ 

§  671.  The  courts  will  not  weigh  with  nice  scales  the  amount  §  605 
of  the  pecuniary  interest,  but  will  admit  every  entry  which,  at 
the  time  when  it  was  made,  completehj  charged  the  maker  to  any 
extent.^  But  an  incomplete  charge  will  not  be  sufficient ;  and, 
therefore,  an  entry  in  the  following  form,  "April  4th. — A.  came 
as  a  servant,  to  have  for  the  half  year  2Z.,"  was  held  to  be  inad- 
missible as  a  declaration  "against  interest,  the  court  considering 
it  merely  as  a  memorandum  of  an  agreement,  which  must  be 
supposed  to  have  been  made  on  fair  terms,  and  was,  consequently, 
as  much  in  favour  of  the  maker's  interest  as  against  it.  If  the 
master  had  to  pay  for  the  services,  the  servant  had  to  perform 


Denman  in  Davis  v.  Lloyd,  1  C.  &  Kir.  276.     See,  also,  Smith  v.  Blakey,  2  Law 
Rep.,  Q.  B.  326  ;  36  L.  J.,  Q.  B.  156  ,  8  B.  &  S.   157,  S.  C;    Massey  v.  Allen, 
49  L.  J.,  Ch.  76  ;  L.  R.,  13  Ch.  D.  558,  S.  C. 
1  11  CI.  &  Fin.  110. 

*  Id.  Ill,  112.     This  case  overrules  Standen  v.  Standen,  Pea.  R.  45. 

*  Orretti'.  Corser,  21  Beav.  52  ;  Richards  v.  Gogarty,  I.  R.,  4  C.  L.  300. 

(3458) 


CHAP.  XI.]        ORAL  STATEMENTS — WRITTEN  STATEMENTS.  591 

them.  Mr.  Justice  Coleridge  observed,  that  "  this  was  not  an  entry 
against  the  party's  interest,  unless  the  mere  making  of  a  contract 
be  so;  and  if  that  were  the  case,  the  existence  of  a  contract  would 
be  against  the  interest  of  both  parties  to  it." ' 

§  G7'2.  It  is  now  determined  both  with  reference  to  this  excep-  I  COS 
tion,  and  also  to  that  which  relates  to  declarations  made  in  the 
course  of  duty  or  business,^  that  the  term  "  declaration  "  includes 
a  mere  oral  statement,  as  well  as  a  written  memorandum.^  The 
former  may  indeed  be  entitled  to  less  weight  with  the  jury  than 
the  latter,  but  the  law  of  England  recognises  no  distinction 
between  statements  made  by  word  of  mouth,  and  those  made  in 
writing,  except  where  the  writing  is  by  deed/  or  is  rendered 
necessary  by  some  statute. 

§673.  It  is  further  clear  that  the  term  "declaration,"  as  ap-  §607 
plied  to  the  exception  under  discussion,  embraces  all  tvritten 
statements,  whether  made  at  the  time  of  the  fact  declared,  or  on  a 
subsequent  day,^  though  the  exception  is  most  frequently  exem- 
plified by  entries  in  books  of  account.  Where  ®  these  are  books 
of  collectors  of  taxes,  stewards,  bailiffs,  or  receivers,  which  are 
subject  to  the  inspection  of  others,  and  in  which  the  entries  are 
generally  of  money  received,  charging  the  party  making  them,  the 
exception  clearly  applies.^  But  private  books,  though  exclusively 
retained  within  the  custody  of  their  owners,  are  also  admissible 
on  the  same  principle;  for  their  liability  to  be  produced  in  courts 
of  law  on  notice  or  subpcena,  and  the  chance  of  their  contents  be- 
coming known  through   accident,   are  deemed  sufiicient  security 

1  R.  V.  Worth,  4  Q.  B.  132,  i:]9.  ^  ^   ^  Buckley,  1.3  Cox,  293. 

'■"  R.  V.  Birmingham,  31  L,  J.,  M.  C.  63;  1  B.  &  S.  763,  S.  C.  See  Stapylton 
r.  Clough,  2  E.  &  B.  933;  Fursdon  v.  Clogg,  10  M.  &  W.  572,  574—576; 
Sussex  Peer.,  11  CI.  &  Fin.  103—114.  See,  also,  post,  §708.  In  Smith  i). 
Blakey,  8  B.  &  S.  164,  Blackburn,  J.,  is  reported  to  have  questioned  this  pro- 
position as  being  "too  broadly  stated,"  but  the  learned  Judge  cited  no 
authority  iu  support  of  his  view  of  the  law,  and  his  comment  was  a  mere  obiter 
dictum. 

*  Bewley  v.  Atkinson,  49  L.  J.,  Ch.  153,  161,  per  Thesiger,  L.  J. 

*  Doe  V.  Turford,  3  B.  &  Ad.  898,  per  Parke,  B. ;  Short  v.  Lee,  2  Jac.  &  W, 
475,  per  Plumer,  M.  R.  ^  Gr.  Ev.  §  150,  in  great  part. 

'  Barry  t;.  Bebbington,  4  T.  R.  514;  Goss  v.  Watlington,  3  B.  &  B.  132; 
Whitnash  v.  George,  8  B.  &  C.  556. 

(3459) 


592  BALANCE  OF  DEBTOR  AND  CREDITOR  ACCOUNT.         [PART  II. 

against  fraud;'  and  as  the  entry  is  not  admissible,  unless  it 
either  charges  the  party  making  it  with  the  receipt  of  money  on 
account  of  a  third  person,  or  ack non-ledges  the  jjayment  of  money 
due  to  himself,  it  is  considered,  in  either  of  these  events,  as  suffi- 
ciently against  his  interest  to  be  brought  within  the  exception.^ 

§  674.  No  valid  objection  can  be  taken  to  the  admissibility  of 
an  entry,  which  charges  the  person  making  it  with  receiving 
money  from  another,  on  the  ground  that  such  entry  forms  only  a 
part  of  a  general  debtor  and  creditor  account,  the  balance  of  tchich 
is  in  favour  of  the  receicer;^  for,  if  an  action  were  brought  against 
the  receiver  by  his  employer,  that  part  of  the  account  which 
charged  the  receiver  would  be  evidence  against  him,  while  the 
entries  which  showed  his  discharge,  though  not  absolutely  inad- 
missible for  him,  would,  as  compared  with  the  entries  against 
his  interest,  be  entitled  to  very  little  weight;*  and  even  if  it  were 
otherwise,  the  admission  of  the  receipt  of  money  would  still  be 
against  his  interest,  as  the  balance  in  his  favour  would  thereby  be 
diminished  to  the  extent  of  the  sum  admitted.^  Besides,  a  man 
is  little  likely  to  charge  himself  for  the  mere  purpose  of  getting 
a  discharge ;  *^  and  as  almost  all  entries,  which  are  tendered  in 
evidence  as  being  declarations  against  interest,  are  inserted  in 
accounts  containing  items  on  both  sides,  the  objection,  if  it  were 
allowed  to  prevail,  would  strike  at  the  very  root  of  the  exception 
under  review.^ 

§  675.  Whether  an  entry  made  by  a  party  acknowledging  the 
payment  of  money  as  due  to  himself,  will  be  admissible  as  a 
declaration  against  interest,  in  cases,  where  such  entry  is  the  only 
evidence  of  the  charge  of  which  it  shows  the  subsequent  liquidation, 


'  Higham  v.  Ridgway,  10  East,  122,  per  Bayley,  J. ;  Roe  v.  Rawlings,  7  East, 
291,  per  Ld.  Ellenborough;  Middleton  v.  Melton,  10  B.  &  C.  317.. 

2  See  Foster  v.  M'Mahon,  11  Ir.  Eq.  R.  287,  299—302. 

3  Rowe  r.  Brenton,  3  M.  &  R.  267,  26H;  Williams  v.  Geaves,  8  C.  &  P.  592, 
per  PattesDn,  J.;  R.  v.  Worth,  4  Q.  B.  134,  per  Coleridge,  J.;  Clark  v.  Wilmot, 
1  Y.  &  C.  Ch.  R.  53.  *  See  2  Smith,  L.  C.  286. 

^  See  8  C.  &  P.  594,  per  Ludlow,  Serj . ,  arguendo. 

«  See  per  Littledale,  J.,  in  Rowe  v.  Brenton,  3  M.  &  R.  268. 

^  See  per  Ld.  Tenterden,  in  id. 

(3460) 


I  608 


609 


CHAP.  XI.  J       WHERE  ENTRY  IS  SOLE  EVIDENCE  OF  CHARGE.  593 

is  a  question  of  more  difficulty,  and  the  authorities  on  the  subject 
are  highly  conflicting.  On  the  one  hand,  two  Nisi  Prius  decisions 
may  be  cited, — namely,  Doe  i'.  Vowles,'  and  Doe  v.  Burton," — which 
seem  distinctly  to  negative  the  admissibility  of  such  evidence. 
In  the  first  case  it  became  necessary  to  show  that  a  mortgagee, 
through  whom  the  plaintiff  claimed,  had  repaired  the  premises  in 
dispute;  and  for  this  purpose,  the  pdaintiff  produced  a  receipted 
bill  for  the  repairs,  in  the  handwriting  of  a  deceased  carpenter? 
which  had  been  found  among  the  mortgagee's  papers.  An  objec- 
tion was  raised  to  the  reception  of  this  paper  as  not  containing 
any  statement  against  the  interest  of  the  carpenter;  since,  though 
it  showed  that  his  demand  had  been  paid,  it  furnished  the  only 
evidence  that  such  a  demand  had  ever  existed.  Mr.  Justice 
Littledale  rejected  the  evidence,  observing,  that  "the  cases  had 
gone  quite  far  enough."  In  the  other  case  the  evidence  tendered 
was  of  a  similar  nature,  excepting  only  that,  instead  of  being  a 
bill  and  receipt,  it  was  an  entry  in  a  deceased  tradesman's  book, 
showing  that  he  had  done  certain  work,  and  had  been  paid  for  it. 
Mr.  Baron  Gurney  refused  to  admit  this  evidence,  apparently  relying 
on  the  authority  of  Doe  v.  Vowles. 

§  676.  On  the  other  hand,  Lord  Denman,^  Lord  Wensleydale,^  ^  610 
and  Sir  George  Jessel,^  appear,  on  separate  occasions,  to  have  ad- 
mitted such  entries,  and  the  last  two  very  learned  judges  are  stated 
to  have  expressly  disapproved  of  Doe  v.  Vowles,  saying  that  they 
thought  it  contrary  in  principle  to  Higham  v.  Eidgway.*^  On  ex- 
amining, however,  the  case  of  Higham  v.  Ridgway,  it  scarcely  seems 
to  furnish  a  safe  guide  on  the  subject;  for  there  it  ivas  proved  by 
evidence  aliunde,  that  the  service  charged  for  in  the  account  had  in 
fact  been  performed ;  and  although  Lord  Ellenborough  first  lays 
down  the  general  doctrine,  that  "evidence  was  admissible  upon 
the  broad  principle  on  which  receiver's  books  have  been  admitted, 
— namely,  that  the  entry  made  was  in  prejudice  of  the  party  making 
it,"'' — he   afterwards,    in   two    different   parts    of    his   judgment, 


'  1  M.  &  Rob.  2G1.  2  9  C.  &  P.  254. 

^  R.  v.  Hendon,  cited  arguendo,  in  9  C.  &  P.  255. 
*  R.  r.  Lower  Heyford,  cited  2  Smith,  L.  C.  283. 

5  Taylor  v.   Witham  and  Witham  v.  Taylor,  L.  R.,  3  Ch.  D.  605;  45  L.  J., 
Ch.  798,  S.  C.  "  10  East,  109.  '   Id.  117. 

(3461) 


594      ENTRIES,  WHEN  EVIDENCE  OF  COLLATERAL  MATTERS.    [PART  II. 

adverts  to  the  fact,  that  the  work,  for  which  the  charge  was  made, 
was  proved  to  have  been  done  by  other  evidence.'  But  still, — in- 
dependent of  this  case, — the  view  of  the  law  taken  by  Lords  Denman 
and  Wensleydalo  and  the  late  distinguished  Master  of  the  Rolls  will 
probably  be  upheld;  for,  although  it  may  be  urged  that,  while  that 
part  of  an  entry  which  is  in  the  writer's  own  favour  stands  uncon- 
firmed, suspicions  may  be  entertained  that  the  whole  statement  is  a 
fiction;^  an  answer  to  this  argument  is  found  in  the  improbability 
that  any  tradesman  would,  without  an  assignable  motive,  fii'st  enter 
a  false  claim  on  one  side  of  his  book,  and  then  admit  its  having 
been  satisfied  on  the  other.  Moreover,  as  the  requiring  corrobo- 
rative proof  of  the  claim  must  tend  to  embarrass  the  trial  by  raising 
collateral  issues,  and  as  the  very  impossibility  of  obtaining  such 
proof  is  often  the  sole  cause,  which  renders  it  necessary  to  have 
recourse  to  the  entry  at  all;  it  seems  naturally  to  follow,  that  the 
admission  of  such  entries  ought  on  every  ground,  whether  of  justice 
or  expediency,  to  be  regarded  as  a  less  evil  than  their  rejection. 

§  677.  The  case  of  Higham  v.  Ridgway,^ — though  it  throws  but  ^  ^^^ 
little  light  on  the  subject  discussed  in  the  preceding  section, -^s 
highly  important,  as  showing  that  entries  may  be  received  in  evi- 
dence of  collateral  and  independent  matters,  which,  though  forming 
part  of  the  declaration,  are  not  in  themselves  against  the  interest  of 
the  declarant.  In  that  case,  to  prove  on  what  day  a  child  was  born, 
the  book  of  the  accoucheur,  who  had  attended  the  mother  in  her 
confinement,  was  produced,  and  as  his  charge  for  such  attendance 
on  a  day  specified  was  marked  in  the  book  as  2oaid,  this  entry  was 
admitted  as  evidence  of  the  date  of  the  birth.  Lord  Ellenborough, 
in  pronouncing  judgment,  observes,  "It  is  idle  to  say  that  the  word 
paid  only  shall  be  admitted  in  evidence  without  the  context,  whicli 
explains  to  what  it  refers:  we  must  therefore  look  to  the  rest  of  the 
entry,  to  see  what  the  demand  was,  which  he  thereby  admitted  to 
be  discharged."  *  So.  in  Doe  v.  Robson,Hhe  entry  in  a  book  of  a 
deceased  attorney  of  charges  paid  for  a  lease  as  drawn  on  a  certain 
day,  was  held  to  be  evidence  that  the  lease  was  drawn  on  that  day. 


'  10  East,  117,  119.  *  2  Smith,  L.  C.  283.  '  10  East,  109. 

*  Id.  117. 

'  15  East,  32.     See,  also.  In  the  goods  of  Thomas,  41  L.  J.,  Pr.  &  Mat.  32. 

(3462) 


CHAP.  XI.  J     ENTRIES,  WHEN  EVIDENCE  OF  COLLATERAL  MATTERS.    595 

§  678.'  In  a  later  case,"  the  judges, — while  intimating  an  opinion,  ^  oil 
that,  if  the  point  were  res  nova,  it  would  be  more  reasonable  to 
hold  that  the  memorandum  of  a  receipt  of  payment  was  admissible 
only  to  the  extent  of  proving  that  a  payment  had  been  made,  and 
on  what  account,  thus  giving  it  the  effect  only  of  a  verbal  proof 
of  the  same  payment, — acknowledged  that  the  authorities  had 
gone  beyond  that  limit,  and  that  the  entry  of  a  payment  against 
the  interest  of  the  party  making  it,  had  been  held  to  have  the  effect 
of  proving  the  truth  of  other  statements  contained  in  the  same 
entry,  and  connected  with  it.  In  that  case.  A.,  B.  &  C.  had  made 
a  joint  and  several  promissory  note  for  300 Z.,  and  a  partial  payment 
had  been  made  by  A.,  which  was  endorsed  by  the  payee  upon  the 
note  in  these  terms, — "  Received  of  A.  the  sum  of  280Z.  on  account 
of  the  within  note,  theSOOl.  having  been  originally  advanced  to  C." 
An  action  having  been  brought  by  A.  to  recover  contribution  from 
B.  "  as  a  co-surety,"  the  court  held  that,  as  the  payee  was  dead, 
the  indorsement  was  admissible  evidence  of  the  whole  statement 
contained  in  it,  and  was  consequently  evidence,  not  only  of  the 
payment  of  the  money,  but  of  the  fact  that  C.  was  the  principal 
debtor;  leaving  the  effect  of  such  proof  to  be  determined  by  the- 
jury. 

§  679.  Again,  in  the  case  of  Marks  v.  Lahee,^  the  plaintiff,  in  ?  612. 
order  to  prove  a  tender  and  refusal,  offered  in  evidence  two  entries, 
which  had  been  made  by  a  deceased  clerk  of  his  attorney  in  the 
day-book  of  the  oflfice.  By  the  first,  the  clerk  acknowledged  the 
receipt  of  lOOZ.  from  his  employer,  for  the  purpose  of  making  a 
tender  to  the  defendant.  The  second  entry  was  as  follows :  "  Re 
Colnaghi,  attending  Mr.  Lahee;  tendering  him  100/.  for  each  of 
the  plates,  and  the  etching  of  the  Queen  separately  ;  when  he  de- 
clined to  let  me  have  the  same,  and  said  he  had  no  objection  to  deliver 
up  the  impressions,  upon  the  payment  of  the  expenses  of  making 
them."  An  objection  was  taken  to  the  admissibility  of  the  second 
entry,  on  the  ground  that  it  did  not  charge  the  party  making  it^  but 


^  Gr.  Ev.  §  152,  in  great  part. 

^  Davies  v.  Humphreys,  6  M.  &  W.  153,  166.     See,  also,  Percival  v.  Nanson, 
7  Ex.  R.  1.  33  Bing  jj.  C.  408;  4  Scott,  137,  S.  C. 

17  LAW  OP  EVID. — V.  II.  (3463) 


596  ENTRIES  NO  PROOF  OF  INDEPENDENT  MATTERS.  [PART  II, 

rather  discharged  him,  as  showing  that  he  had  fulfilled  his  duty; 
that  the  second  entry  must  be  taken  by  itself,  because  the  first  did 
not  prove  the  tender;  and  being  so  taken,  there  was  nothing  to 
show  that  the  clerk  did  not  tender  his  own  money  ;  in  which  case 
the  entry  contained  nothing  to  charge  him.  The  objection,  how- 
ever, was  overruled,  and  Chief  Justice  Tindal  observed,  that  if  an 
action  had  been  brought  by  the  employer  against  the  clerk  for 
money  had  and  received,  the  entry  would  have  been  material  evi- 
dence to  show  that  he  had  received  lOOZ.,  and  had  not  disposed  of 
it  according  to  his  instructions;  so  that  it  remained  in  his  hands 
to  be  accounted  for  to  the  employer.  In  such  an  action  the  em- 
ployer could  not  have  relied  on  the  first  entry  alone;  but  must  have 
further  shown  that  the  object,  for  which  the  money  was  placed  in 
the  clerk's  hands,  had  not  been  attained.'  The  case  of  Stead  v. 
Heaton^  caiTies  this  doctrine  to  the  extreme  verge  of  the  law/ 
There,  in  order  to  establish  the  existence  of  a  customary  payment, 
two  entries  in  the  parish  book  were  put  in.  The  first  stated  the 
custom,  and  the  second,  which  was  written  on  the  same  page,  was 
as  follows: — "  Received  of  Haworth,  who  this  year  disputed  f/tts  our 
ancient  custom,  but  afterwards  paid  it,  8Z."  The  court  held  that 
both  entries  were  admissible,  the  latter  as  charging  the  parish 
officers  with  receipt  of  the  money,  the  former  as  immediately 
preceding  the  latter,  and  being  referred  to  in  it.* 

§  680.  It  must  not  be  supposed  from  the  preceding  cases,  that  ^  613 
because  a  document  contains  entries  against  interest,  it  will  be  ad- 
missible in  proof  of  independent  matters,  which  appear  as  separate 
items  unconnected  with  such  entries,  and  which,  consequently,  need 
not  be  read  in  order  to  explain  them.^  Such  is  not  the  law;  and 
whatever  doubts  might  once  have  been  entertained  on  the  subject,^ 
it  is  now  finally  determined,  that  if  an  account  be  rendered  by  a 


1  3  Bing.  N.  C.  419. 

^  4  T.  R.  669.     See,  also,  May.  of  Exeter  v.  WaiTcn,  5  Q.  B.  773. 
'  Per  Alderson,  B.,  in  Knight  r.  Waterford,  4  Y.  &  C,  Ex.  E.  294. 
*  See  Miisgrave  v.  Emmerson,  10  Q.  B.  326. 

^  Per  Ld.   Lyndhurst,  in  Rudd  v.  Wright,  cited  1  Ph.  Ev.  314,  315;  4  Y. 
&  C,  Ex.  R.  294. 

«  Bullen  V.  Michel,  2  Price,  399. 

(3464) 


CHAP.  XI.]  ENTRIES  NO  PROOF  OF  INDEPENDENT  MATTERS.  597 

steward  containing  on  one  side  items  charging  himself  with  the 
receipt  of  moneys,  and  on  the  other  side  items  discharging  him  by 
showing  how  the  moneys  received  had  been  disbursed,  the  dis- 
charging entries  will  not  be  admissible  in  evidence,  unless  they  arQ 
necessary  to  explain  the  charging  entries,  or  are  expressly  referred 
to  by  them.^  For  instance,  in  the  case  of  Knight  v.  The  Marquis 
of  Waterfor J,"  the  accounts  of  a  deceased  steward  were  tendered  in 
evidence,  with  the  view  of  showing  that  former  lords  of  the  manor 
had  been  liable  to  pay  poor-rates  on  the  tithes.  On  one  side  of 
these  accounts  the  steward  acknowledged  the  receipt  of  rent  for 
tithes  from  a  tenant ;  and  on  the  other  side  was  an  entry  in  dis- 
charge of  the  former  item,  by  allowing  the  tenant  a  certain  sum  for 
poor  rates  on  the  tithes.  Mr.  Baron  Alderson  rejected  the  second 
entry,  on  the  ground  that  it  was  not  directly  connected  with  the 
first  item,  though  made  about  the  same  time  ;  but  his  lordship 
added  that,  if  the  amount  charged  had  been  stated  to  be  a  sum  less 
by  the  deduction  of  the  opposite  side  of  the  account,  it  might  then 
possibly  have  been  admissible,  on  the  authority  of  Stead  v.  Heaton. 

§  681.^  In  order  that  declarations  against  interest  should  be  re-  l  614 
ceived  in  evidence,  it  is  not  necessary, — as  was  formerly  thought,* — 
that  the  declarant  should  have  been  competent,  if  living,  to  testify 
to  the  facts  contained  in  the  declaration.^  Neither  is  it  material, 
so  far  at  least  as  regards  the  admissibility  of  declarations,  whether 
the  matters  stated  therein  are  or  are  not  provable  by  living  witnesses 
who  might  have  been  called.*"  Moreover,  no  objection  can  be  taken 
to  an  account,  in  which  a  deceased  agent  charges  himself  with  the 
receipt  of  money,  on  the  ground  that  it  does  not  appear  by  the 
account  itself  for  whom  the  sums  were  received;  provided  it  can  be 
shown  aliunde  that  they  were  in  fact  collected  for  a  third  person.^ 


'Doe  V.   Beviss,   18  L.  J.,   C.   P.   128;  7  Com.   B.  456,   S.    C;   Whaley  v. 
Carlisle,  17  Jr.  Law  R.,  N.  S.  792. 

M  Y.  &  C,  Ex.  R.  283,  294,  295. 

'  Gr.  Ev.  I  158,  in  part. 

*  See  per  Bay  ley,  J.,  in  Higham  v.  Ridgway,  10  East,  123. 

5  Gleadow  v.   Atkin,  1  C.   &  M.   410,   423,   424  ;  Short  v.  Lee,  2  Jac.  &  W. 
489. 

«  Middleton  v.  Melton,  10  B.  &  C.  317,  327,  per  Parke,  J.;  ante,  I  641. 

^  Rowe  V.  Brenton,  3  M.  &  R.  268—270. 

(3465) 


598  ENTRIES  AUTHORISED  BY  PARTIES  CHARGED.  [pART  11. 

§  682.  To  render  accounts  admissible  as  the  declarations  of  a  §  615 
deceased  person  charging  himself,  it  is  not  necessary  that  they 
should  be  in  his  handwriting,  and  should  bear  his  signature;  but 
they  will  be  received  in  evidence,  if  they  were  written  by  him 
either  wholly'  or  in  part,"  though  they  were  not  signed  ;  or  if  they 
were  signed  by  him,  though  they  were  written  by  a  stranger.' 
Neither  can  any  objection  be  raised  to  their  admission,  though 
they  were  neither  written  nor  signed  by  the  deceased,  if  either 
direct  proof  can  be  furnished  that  they  were  written  by  his  autho- 
rised agent,*  or  if  that  fact  can  be  indirectly  established,  as,  for 
instance,  by  showing  that  the  deceased  subsequently  adopted  the 
accounts  as  his  own,  and  delivered  them  in  at  an  audit  •^'  nor  does 
it  signify  in  such  a  case,  whether  the  party  who  actually  wrote  the 
accounts  be  alive  or  dead  at  the  time  of  the  trial,  though,  in  the 
former  event,  his  non-production  may  be  matter  of  observation  to 
the  jury.^  But  if  no  proof  can  be  given  that  the  account  was 
either  written,  or  signed,  or  authorised,  or  adopted,  by  the  deceased 
person  made  chargeable  thereby,  it  cannot  be  received  ;  and, 
therefore,  where  a  rental,  in  which  a  deceased  steward  was  debited 
with  the  receipt  of  certain  payments,  was  written  by  a  party  since 
dead,  styling  himself  clerk  to  such  steward,  the  court  refused  to 
receive  it  as  a  declaration  against  the  interest  of  the  steward,  as 
no  parol  evidence  had  been  given  to  show  that  he  ever  employed 
the  writer  to  make  the  entries  ;  and  it  was  equally  inadmissible  as 
made  against  the  interest  of  the  clerk,  because  it  did  not  purport 
to  charge  him.''  After  the  lapse  of  thirty  years,  the  handwriting 
of  the  account  need  not  be  proved,  provided  the  book  containing 
it  be  produced  from  the  proper  custody.* 


'  Rowe  V.  Brenton,  3  M.  &  R.  2fi7— 2f59. 
'    *  Doe  r.  Colcombe,  C.  &  Marsh.  155,  per  Coleridge,  J. 

»  Doe  r.  Staco}',  6  C.  &  P.  139,  per  Tindal,  C.  J. 

♦  Bradley  r.  James,  13  Com.  B.  822. 

^Doe  V.  Hawkins,  2  Q.  B.  812;  1  G.  &  D.  551,  S.  C;  Doe  r\  Mobbs,  C.  & 
Marsh.  1  ;  May.  of  Exeter  ^.  Warren,  5  Q.  B.  773  ;  Att.-Gen.  v.  Stephens,  1 
Kay  &  J.  740,  per  Wood,  V.-C. 

6  2  Q.  B.  217,  per  Patteson,  J. 

'  Baron  d©  Rutzen  v.  Farr,  4  A.  &  E.  53 ;  5  N.  &  M.  617,  S.  C. 

8  Wynne  v.  Tyrwhitt,  4  B.  &  A.  376  ;  May.  of  Exeter  v.  Warren,  5  Q.  B. 

(3466) 


CHAP.  XI.]     ENTRIES  BY  AGENTS — PROOF  OF  AGENCY.  59^ 

§  683.'  Where  the  evidence  consists  of  entries  made  by  persons  g  616 
acting  for  others  in  the  capacity  of  agents,  stewards,  or  receivers, 
some  proof  of  such  agency  is  generally  required,  previous  to  their 
admission;  but  here  a  distinction  has  been  taken,  to  the  effect 
that,  where  the  office  is  public  and  must  exist,  the  law  will  presume 
that  a  person  who  acts  in  it  has  been  regularly  appointed;  but 
that  where  it  is  merely  private,  some  preliminary  and  independent 
evidence  must  in  general  be  adduced  of  the  existence  of  the  office, 
and  of  the  appointment  of  the  particular  agent  or  incumbent.* 
It  seems  that  the  mere  antiquity  of  the  book  containing  the  entry 
affords  no  sufficient  ground  for  dispensing  with  this  preliminary 
proof,  and  therefore  entries  have  been  rejected  for  want  of  it, 
though  apparently  made  as  much  as  fifty,  seventy,  and  even  one 
hundred  and  sixty  years  before  the  trial.^  In  Davies  v.  Morgan, 
where  the  entry  bore  date  1673,  Mr.  Baron  Bayley,  in  rejecting 
it,  observed,  "  The  character  of  the  evidence  must  be  established 
before  the  entry  is  read;  you  cannot  read  it  to  show  the  position 
of  the  party  making  it;  that  must  be  proved  aliunde."*  So,  in 
Short  V.  Lee,  Sir  Thomas  Plumer  said,  with  reference  to  a  book 
seventy  years  old,  which  purported  to  have  been  kept  by  a  tithe- 
collector  named  Beale,  '•  If  the  writings  of  persons  not  invested 
with  the  proper  characters  were  received,  nothing  could  be  more 
dangerous  to  property.  Suppose  that  Beale  was  not  the  person 
authorised  to  collect  the  tithes,  but  nevertheless  had  for  some 
purpose  made  these  entries  ;  then,  if  after  his  death  the  book 
purporting  to  be  a  collector's  book  was  to  be  evidence  to  prove 
that  he  was  collector,  and  his  being  collector  was  to  prove  the 
entries  to  be  correct,  the  consequence  would  be,  that  the  rights 
of  the  rector  on  the  one  hand,  or  those  of  the  parishioners  on  the 
other,  would  be  exposed  to  the  greatest  danger,  and  perhaps  from 
the  writings  of  a  person  having  a  contrary  interest."  ^      Still,  if 


773;  Doe  v.  Michael,  17  Q.   B.   276;  Att.-Gen.  v.  Stephens,  1  Kay  &  J.  724, 
740. 

1  Gr.  Ev.  ?  154,  in  part. 

2  Short  V.  Lee,  2  Jac.  &  W.  467,  468,  474,  475,  per  Plnnier,  M.  R. 

^  Manby  v.  Curtis,  1  Price,  225;  Short  t>.  Lee,  2  Jac.  &  W.  466,  467;  Davies 
V.  Morgan,  1  C.  &  .1.  590,  591.  *  1  C.  &  J.  591. 

5  2  Jac.  &  W.  467,  468. 

(3467) 


600  DECLARATIONS  AGAINST  PROPRIETARY  INTEREST.       [PART  11. 

ancient  books  come  from  the  proper  repository,  slight  proof  of  the 
official  character  of  the  writer  will  usually  be  sufficient  to  warrant 
their  admission;  and  if  they  contain  strong  internal  evidence  of 
their  actually  being  what  they  purport  to  be,  they  may,  it  seems,  ou 
that  ground  alone  be  submitted  to  the  jury.' 


§  C84.  Under  the  head  of  declarations  against  proprietary  I  617 
interest,  may  be  classed  the  statements  made  by  persons  while  in 
possession  of  land,  explanatory  of  the  character  of  their  posses- 
sion; and  it  is  now  well  settled  that  such  declarations,  if  made  in 
disparagement  of  the  declarant's  title,  are  receivable,  not  only  as 
original  admissions  against  himself  and  all  persons  who  claim 
title  through  him,^  bat  also  as  evidence  for  or  against  strangers.* 
Whether  in  this  latter  event  they  are  admissible  in  the  lifetime  of 
the  declarant,  or  only  in  cases  where  his  death  can  be  proved,  is  a 
point  which  does  not  appear  to  have  been  distinctly  decided.  In 
most  of  the  cases  where  the  evidence  has  been  received,  the 
declarant  was  dead;*  bat  on  two  occasions,  at  least,  the  evidence 
was  admitted,  though  the  declarant  was  living.^  The  only  ground 
on  which  it  can  be  contended  that  these  declarations  are  receivable 


*  Doe  V.  Thynne,  10  East,  206,  210;  Brune  v.  Thompson,  C.  &  Marsh.  36— 
39,  per  Ld.  Denman;  May.  of  Exeter  v.  Warren,  5  Q.  B.  773;  Doe  v.  Michael, 
17  Q.  B.  276;  Att.-Gen.  v.  Stephens,  1  Kay  &  J.  724,  740.     See  ante,  §  612. 

2  Ld.  Triuilestown  v.  Keramis,  9  CI.  &  Fin.  780,  784,  785;  Doe  v.  Pettett, 
5  B.  &  A.  223;  Doe  v.  Austin,  9  Bing.  41.  .  For  the  American  authorities,  see 
West  Cambridge  v.  Lexington,  2  Pick.  536;  Little  v.  Libby,  2  Greenl.  242 
Rankin  v.  Tenbrook,  6  Watts,  388,  390;  Jackson  v.  Bard,  4  Johns,  230,  234 
Weidman  v.  Kohr,  4  Serg.  &  R.  174;  Gibblehouse  v.  Strong,  3  Rawle,  437 
Davies  v.  Campbell,  1  Iredell,  402;  Crane  v.  Marshall,  4  Shepl.  27. 

3  Carne  V.  Nicoll,  1  Bing.  N.  C.  430;  1  Scott,  466,  S.  C;  Doe  v.  Langfield, 
16  M.  &W.  497;  Doe  v.  Jones,  1  Camp.  367;  Davies  v.  Pierce,  2  T.  R.  53; 
Doe  I'.  Rickarby,  5  Esp.  4;  Peaceable  «.  Watson,  4  Taunt.  16;  Doe  v.  Coul- 
thred,  7  A.  &  E.  235;  Garland  v.  Cope,  11  Ir.  Law  R.  .514;  Mountnoy  v. 
Collier,  1  E.  &  B.  630;  Gery  v.  Redman,  L.  R.,  1  Q.  B.  D.  161;  45  L.  J., 
Q.  B.  267,  S.  C. 

*  Carnev.  Nicoll,  1  Bing.  N.  C.  430;  1  Scott,  466,  S.  C;  Doe  v.  Jones,  1 
Camp.  367;  Davies  v.  Pierce,  2  T.  R.  53;  Peaceable  v.  Watson,  4  Taunt.  16; 
Doe  r.  Coulthred,  7  A.  &  E.  235;  Doe  v.  Pettett,  5  B.  &A,  223. 

*  Walker  v.  Broadstock,  1  Esp.  458,  per  Thomson,  B. ;  Doe  v.  Rickarby,  5 
Esp.  4,  per  Ld.  Alvanley.  In  Papendick  v.  Bridgwater,  5  E.  &  B.  166,  Walker 
V.  Broadstock  was  denied  to  be  law. 

(3468) 


CHAP.  XI.]       DECLARATIONS  AGAINST  PROPRIETARY  INTEREST.  GOl 

during  the  declarant's  lifetime  appears  to  be  that  they  are  state- 
ments accompanying  the  acts  of  possession,  and  as  such  consti- 
tuting part  of  the  res  gestae;  but  this  argument  proves  too  much, 
as  the  effect  of  it  would  be  to  let  in  all  declarations  of  the  occupier, 
whether  in  disparagement  or  in  support  of  his  title;  an  extension 
of  the  rule  which,  however  consistent  it  may  be  with  principle,  is 
certainly  not  warranted  by  judical  decisions.'  The  safest  course 
therefore  is  to  regard  these  declarations  as  merely  receivable  when 
the  declarant  is  dead,  in  which  case  they  become  good  primary 
evidence;"  and  further  to  consider  that  their  admissibility  depends 
on  the  simple  ground  that  they  are  made  against  the  interest  of  the 
declarant.^ 

§  685.  It  should  here  be  remembered  that  possession  is  prima  I  618 
facie  evidence  of  seisin  in  fee  simple;*  and,  consequently,  any 
declaration  by  the  possessor  that  he  is  tenant  in  tail,  or  for  life,  or 
for  years,  or  by  sufferance,  as  it  makes  strongly  against  his  own 
interest,  may  safely  be  received  in  evidence,  on  account  of  its 
probable  truth.^  It  matters  not  whether  the  declaration  be  made 
verbally,*^  or  in  writing,'  or  by  deed,^  or  by  will,  even  though  it  be 
unproved,"  or  in  a  statement  of  defence  to  an  action,'"  for  the  same 


1  See  Doe  v.  Wainwright,  8  A.  &  E.  700,  701. 

2  Doe  V.  Langfield,  16  M.  &  W.  513,  514,  per  Parke,  B. 

*  See  Phillips  v.  Cole,  10  A.  &  E.  Ill,  where  Ld.  Denman,  in  pronouncing 
the  judgment  of  the  court,  observes,  "It  is  clear  that  declarations  of  third 
persons  alive,  in  the  absence  of  any  community  of  interest,  are  not  to  be  re- 
ceived to  affect  the  title  or  interests  of  other  perons,  merely  because  they  are 
against  the  interests  of  those  who  make  them."  *  Ante,  §  123. 

^  Chambers  v.  Bernasconi,  1  C.  &  J.  457,  per  Ld.  Lyndhurst;  Peaceable  v. 
Watson,  4  Taunt.  17,  per  Sir  J.  Mansfield,  C.  J. ;  Crease  v.  Barrett,  1  C.  M.  & 
K.  931;  5  Tyr.  473,  S.  C,  per  Parke,  B. ;  Doe  v.  Langfield,  IG  M.  &  W.  497. 

«  Came  v.  Nicoll,  1  Bing.  N.  C.  430;  1  Scott,  466,  S.  C;  Baron  de  Bode's 
case,  8  Q.  B.  243,  244;  R.  v.  Birmingham,  31  L.  J.,  M.  C.  63;  1  B.  &  S.  763, 
S.  C;  R.  V.  Exeter,  4  Law  Rep.,  Q.  B.  341;  38  L.  J.,  M.  C.  127;  10  B.  &  S. 
433,  S.  C. 

^  Doe  V.  Jones,  1  Camp.  367;  R.  v.  Exeter,  4  Law  Rep.,  Q.  B.  341;  38 
L.  J.,  M.  C.  127;  &  10  B.  &  S.  433,  S.  C. 

8  Doe  V.  Coulthred,  7  A.  &  E.  235;  Garland  v.  Cope,  11  Ir.  Law  R.  514; 
Sly  V.  Sly,  L.  R.,  2  P.  D.  91;  46  L.  J.,  P.  D.  &  A.  63,  S.  C. 

9  O'Sullivan  v.  Burke,  I.  R.,  9  C.  L.  105. 

1"  Ld.  Trimlestown  v.  Kemmis,  9  CI.  &  Fin.  779,  780. 

(3469) 


602     DECLARATIONS  AGAINST  PROPRIETARY  INTEREST,   [PART  H. 

principle  applies  in  all  these  cases;  but  it  must  relate  to  matters, 
either  within  the  declarant's  own  knowledge,  or  on  which  he  has 
himself  formed  an  opinion;  and  therefore  a  statement  of  defence, 
narrating  what  the  declarant  has  heard  another  person  state  re- 
specting his  title,  is  not  admissible  to  defeat  his  estate,  at  least  if 
he  does  not  add  that  he  believes  such  statement  to  be  true.' 


§  686.  It  is  difficult  to  fix  with  precision  how  far  these  declara-  I  ^^^^ 
tions  are  admissible  as  evidence  of  the  facts  contained  in  them. 
They  have  been  received  to  show  the  name  of  the  landlord  under 
whom,"  and  the  identity  of  the  will  under  which,'  the  declarant  held, 
the  amount  of  rent  that  was  paid,*  the  fact  of  the  payment  of  rent,^ 
the  extent  of  the  tenement  that  was  occupied,"  and  the  fact  that  it 
was  freehold  and  not  copyhold; '  and  the  courts  seem  now  inclined 
to  admit  them,  not  only  as  proof  of  the  interest  which  the  declarant 
enjoyed  in  the  premises,  but  as  evidence  of  any  fact  which  is  not 
foreign  to  the  statement  against  interests,  and  which  forms  sub- 
stantially a  part  of  it.^  It  appears  that,  in  all  these  cases,  it  must 
be  proved  that  the  declarant  was  actually  in  possession  of  the  land 
in  question;  since  otherwise  his  declaration  that  he  has  a  limited 
interest  therein,  may  be  regarded  in  the  light  rather  of  a  statement 
in  his  own  favour  than  of  one  against  his  interest.®  Still,  slight 
evidence  on  this  head  will,  it  seems,  suffice;'"  and,  therefore,  where 
a  person  was  seen  felling  timber  in  a  wood,  this  act  of  his, — 
though  probably  he  was  in  fact  a  mere  labourer, — was  held  to  be  a 
sufficient  assertion  of  ownership  to  raise  a  presumption  that  he  was 


1  Ld.  Trimlestown  v.  Kemmis,  9  CI.  &  Fin.  780,  784—786,  by  the  Lds., 
confirming  the  unanimous  opinion  of  the  judges. 

^  Peaceable  v.  Watsnn,  4  Taunt.  16;  Holloway  v.  Eakes,  cited  by  Buller,  J., 
in  Davies  v.  Pierce,  2  T.  R.  55;  Doe  v.  Green,  1  Gow,  R.  227. 

=*  Sly  V.  Sly,  L.  R.,  2  P.  D.  91;  46  L.  J.,  P.  D.  &  A.  63,  S.  C. 

*  R.  V.  Birmingham,  31  L.  J.,  M.  C.  63;  5  B.  &  S.  763,  S.  C. 

5  R.  V.  Exeter,  4  Law  Rep.,  Q.  B.  341;  38  L.  J.,  M.  C.  127;  10  B.  &  S. 
433,  S.  C. 

6  Mountnoy  i-.  Collier,  1  E.  &  B.  630. 
'  Doe  V.  Jones,  1  Camp.  367. 

8  R.  V.  Birmingham,  31  L.  J.,  M.  C.  63;  1  B.  &  S.  763,  S.  C. 

9  See  Crease  v.  Barrett,  1  C.  M.  &  R.  919,  931;  5  Tyr.  458,  473,  S.  C. 
>"  La  Touche  v.  Button,  I.  R.,  9  Eq.  166. 

(3470) 


CHAP.  XI.]         STATEMENTS  IN  DISPARAGEMENT  OF  TITLE.  603 

possessed  of  the  fee,  and,  consequently,   to  let  in  any  statement 
made  by  him  as  to  who  was  the  actual  proprietor.' 

§  687.  In  applying  this  rule,  care  must  be  taken  to  distinguish  §  620 
between  statements  made  by  an  occupier  of  land  in  disparagement 
of  his  own  title,  and  such  declarations  as  merely  go  to  abridge  or 
encumber  the  estate  itself;  since,  though  the  former  are  receivable, 
the  latter  will  be  rejected.  For  instance,  if  an  occupier  state  that 
he  is  only  tenant  for  life,  this  after  his  death  will  be  admissible 
evidence  against  a  stranger:  but  if  he  admit  that  the  property  was 
intersected  by  a  public  highway,  or  that  a  neighbour  had  an  ease- 
ment in  the  land  in  question,  or  that  he  himself  was  not  entitled 
to  common  of  pasture  in  respect  of  it,  such  admission  will  only 
bind  himself  and  those  who  claim  under  him,  and  will  be  inad- 
missible to  establish  the  highway  or  the  easement  as  against  his 
landlord  or  a  stranger.^  The  grounds  for  this  distinction  are 
obvious:  for  though  it  is  scarcely  possible  to  imagine  any  induce- 
ment, which  will  lead  a  person  possessed  of  premises  in  fee  to 
admit  that  he  is  only  a  tenant,  many  causes  might  induce  a 
tenant  to  acknowledge  the  existence  of  an  easement  or  a  highway, 
which  might  be  either  not  inconvenient,  or  even  absolutely  bene- 
ficial to  him.^  So,  a  tenant,  who  was  about  to  remove  from  one 
farm  to  another,  might  readily  feel  an  interest  in  denying  the  exis- 
tence of  rights  attached  to  the  former,  with  the  view  of  increasing 
the  value  of  those  which  belonged  to  the  latter.* 

§  688.  Entries  contained  in  the  books  of  deceased   rectors   or    ^  621 
vicars  have  long  been  admitted  as  evidence  in  favour  of  their  suc- 
cessors.^    The  admissibility  of  this  class  of  entries  is  regarded  by 


^  Doe  V.  Arkwright,  5  C.  &  P.  575,  per  Parke,  J. 

2  R.  -y.  Bliss,  7  A.  &  E.  550;  Scholes  v.  Chad  wick,  2  M.  &  Rob.  507,  per 
Cresswell,  J. ;  Tickle  v.  Brown,  4  A.  &  E.  378,  per  Patteson,  J. ;  Papentlick  r. 
Bridgwater,  5  E.  &  B.  166. 

'  See  R.  V.  Bliss,  7  A.  &  E.  551,  per  Ld.  Denman;  Daniel  v.  North,  11  East, 
375,  per  Le  Blanc,  J. 

*  Papendick  v.  Bridgwater,  24  L.  J.,  Q.  B.  292,  per  Erie,  J.;  5  E.  &  B.  16G, 
182,  S.  C. 

*  See  Daly  r.  Wilson,  Milw.  Ec.  Jr.  R.  658—660;  Young  v.  Clare  Hall,  17  Q. 
B.  529. 

(3471) 


604  ENTRIES  IN  BOOKS  OF  DECEASED  RECTORS.  [PART  II. 

some  persons  as  anomak)Us;'  by  some,  as  governed  by  the  rule 
which  admits  the  old  leases,  rent-rolls,  surveys,  &c. ;"'  and  by  others, 
as  falling  within  the  principle  of  the  present  exception.^  Sir 
Thomas  Plumer,  in  the  case  of  Short  r.  Lee,*  observed,  that 
it  Avas  too  late  to  argue  upon  the  rule,  or  upon  what  gave  rise  to 
it;  whether  it  was  the  cursus  Scaccarii,  the  protection  of  the 
clergy,  or  the  peculiar  nature  of  property  in  tithes.  "  It  is  now," 
said  he,  "  the  settled  law  of  the  land.  It  is  not  to  be  presumed, 
that  a  jferson,  Jiaving  a  temporary  interest  only,  irill  insert  a  false- 
hood ill  his  book,  from  xchich  he  can  derive  no  advantage.  Lord 
Kenyon  has  said,  that  the  rule  is  an  exception;  and  it  is  so; 
for  no  other  proprietor  can  make  evidence  for  those  who  claim 
under  him,  or  for  those  who  claim  in  the  same  right  and  stand 
in  the  same  predicament.  But  it  has  been  the  settled  law  as 
to  tithes,  as  far  back  as  our  research  can  reach.  "We  must 
therefore  set  out  from  this  as  a  datum ;  and  we  iuust  not  make 
comparisons  between  this  and  other  corporations.  No  corporation 
sole,  except  a  rector  or  vicar,  can  make  evidence  for  his  successor." 
The  rule,  however,  extends  to  admit  the  books  of  ecclesiastical 
corporations  aggregate,'^  and,  as  it  would  seem,  those  also  of  lay 
impropriators  in  fee;  though  these  last  would  certainly  be  open 
to  considerable  suspicion,  since  a  lay  impropriator  in  fee,  having 
a  permanent  interest  to  advance,  might  possibly  be  induced  to  make 
evidence  for  his  heirs.*^ 

§  689.  With  respect  to  all  these  books,  though  the  law  admits  |  622 
them  as  evidence,  juries  will  do  well  not  to  place  implicit  reliance 
on  the  statements  they  contain;  for,  in  point  of  fact,  the  clergy, — 
like  members  of  all  other  professions, — are,  or  at  least  have  been, 
occasionally  actuated  by  a  strong  esprit  de  corps,  and  the  entries 
in  their  books  evince  not  unfrequently  what  in  some  quarters 
would  be  considered  as  a  commendable  leaning  in  favour  of  the 
rights  of  the  church.     General   observations  have  sometimes  been 


"  Outram  v.  Morewood,  ').  T.  R.  123,  per  Ld.  Kanyon. 

2  Stobart  v.  Dryden,  1  M.  &  W.  617,  per  Parke,  B. 

'  1  Ph.  Ev.  308,  309.  *  2  Jac.  &  W.  477,  478. 

5  Id.  476—479. 

®  Id.  479 — 480,  and  cases  there  cited. 

(3472) 


CHAP.  XI.]  INDORSEMENT  OF  PART  PAYM,  ON  BONDS  AND  BILLS.        605 

made  respecting  these  books,  which  may  seem  to  authorize  the 
admission  of  any  kind  of  statement  contained  in  them.  But 
such  books  will  be  rejected  unless  the  entries  contain  receipts  of 
money  or  ecclesiastical  dues,  or  are,  in  other  respects,  apparently 
prejudicial  to  the  pecuniary  or  proprietary  interests  of  the  makers.' 
And  proof  will  be  required,  as  in  other  cases,  that  the  writer 
was  authorized  to  receive  the  money  stated,  and  that  he  is 
actually  dead  ;  and  further,  that  the  document  came  from  the 
proper  custody.^ 

§  690.  It  remains  only  to  notice  a  class  of  cases,  which  seems  ?  623 
to  fall  within  the  principle  now  under  consideration  more  natu- 
rally than  any  other,  though  one  eminent  writer  on  the  law  of 
evidence  has  treated  it  in  connexion  with  entries  made  in  the 
course  of  business;  '^  we  allude  to  those  cases  where  the  indorse- 
ment by  the  payee  of  the  payment  of  interest,  or  of  part  payment 
of  the  principal,  on  a  bond,  bill  of  exchange,  or  other  negotiable 
security,  used  to  be  tendered  in  evidence  by  his  representatives 
after  his  death,  in  order  to  bar  the  Statute  of  Limitations,  or  to 
rebut  the  presumption  of  payment  that  would  otherwise  have 
arisen  from  lapse  of  time.  Now,  it  is  obvious,  that,  although 
such  indorsements,  if  made  before  the  demand  became  stale  or 
was  affected  by  the  Statute  of  Limitations,  would  be  against  the 
interest  of  the  payee,  inasmuch  as  they  would  prevent  him  from 
recovering  the  amount  of  the  sums  so  indorsed;  yet,  if  they  were 
made  at  a  subsequent  period,  the  creditor  would  be  under  the 
influence  of  a  far  stronger  countervailing  interest;  because,  by 
admitting  a  partial  payment,  he  would  keep  alive  his  right  to 
recover  the  remainder  of  the  debt.  Hence,  it  became  'necessary 
to  show  at  what  time  the  indorsement  was  really  made;  for  if  it 
were  made  before  the  creditor's  remedy  was  impaired  by  lapse  of 
time,  it  was  received;  *  if  after  that  period,  it  was  rejected.^     Still, 


1  1  Ph.  Ev.  303;  Ward  v.  Pomfret,  5  Sim.  475. 

-  jGresl.  Ev.  224;    Carrington   v.    Jones,    2  Sim.  &  St.  135,  145;  Perigal  v. 
Nicholson,  Wightw.  63.  '  M  Ph.  Ev.  330—335. 

*Searle   v.    Ld.    Barrington,    2   Str.  826;  S  Mod.  278;  2  Ld.  Ray.  1370;  3 
Br.  P.  C.  593,  S.  C. ;  Bosworth  v.  Cotohett,  1  Ph.  Ev.  333. 

^  Turner  v.  Crisp,  2  Str.  827;  Glynn  r.  Bk.  of  England,  2  Ves.   Sen.  38,   43; 
Briggs  V.  Wilson,  5  De  Gex,  M.  &  G.  12,  19,  20. 

(3473) 


606      INDORSEMENT  OF  PART  PAYMENT  ON  BONDS  OR  BILLS.     [PART  11. 

the  question  remained,  bow  was  the  time  to  be  proved?  Might 
it  be  inferred  from  the  instrument  itself,  or  was  it  necessary  to 
establish  the  fact  by  extrinsic  evidence  ?  And  on  this  difficult  point 
much  contrariety  of  opinion  prevailed.' 

§  691.  Having  thus  stated  briefly  the  old  law  relative  to  this  §  624 
subject,  it  remains  to  be  shown  how  it  has  been  effected  by 
statutable  enactments.  So  far  as  notes,  bills,  and  other  writings 
subject  to  the  operation  of  the  Statute  of  Limitations,^  are  con- 
cerned, the  matter  has  been  set  at  rest  by  Lord  Tenterden's  Act,^ 
which  enacts  in  §  3,  that  "  no  indorsement  or  memorandum  of  any 
payment  written  or  made  upon  any  promissory  note,  bill  of  ex- 
change, or  other  writing,  by  or  on  behalf  of  the  party  to  whom  such 
payment  shall  be  made,  shall  be  deemed  sufficient  proof  of  such 
payment,  so  as  to  take  the  case  out  of  the  operation  of  the  said 
statute."  *  An  attempt  was  made  a  few  years  back  to  extend  this 
salutary  provision  beyond  its  legitimate  limits.  An  action  was 
brought  by  the  executor  of  the  payee  of  a  note  against  the  maker, 
and  the  plaintiff,  in  order  to  defeat  the  Statute  of  Limitations, 
tendered  in  evidence  a  book,  in  which  he  himself,  by  the  direction 
of  the  testator,  had  entered  two  payments  of  interest,  as  having  been 
made  to  the  testator  by  the  defendant  within  the  last  six  years. 
These  entries  were  objected  to,  on  one  ground,  among  others, 
that  their  receipt  in  evidence  would  violate  the  spirit,  if  not  the 
words,  of  the  enactment  just  cited;  but  Sir  John  Jervis  over- 
ruled the  objection,  and  the  Court  of  Common  Pleas  upheld  his 
ruling.^ 

§  692,   With  respect  to  bonds  and  other  specialties,  the  old  doc-    ?  625 
trine  of  presumption  of  payment  from  lapse  of  time  has    been 
rendered  nugatory  by  §  3  of  3  &  4  W.  4,  c.  42,  which  enacts,  that 
all  actions    of  debt    for  rent  upon   an   indenture   of  demise,  all 
actions  of  covenant  or  debt  upon  any  bond  or  other  specialty, 


^  See  cases  referred  to,  post,  ??  693 — 696. 

2  21  J.  1,  c.  16.  =•  9  G.  4,  c.  14. 

*  As  to  the  Irish  Law,  see  16  &  17  V.,  c.  113,  U  20—24. 
5  Bradley  v.  James,  13  Com.  B.  822. 

(3474) 


CHAP  XI.]      INDORSEMENT    OF    PART    PAYMENT    ON    SPECIALTIES.      GOT 

and  all  actions  of  debt  or  scire  facias  upon  any  recognisance,  &c., 
shall  be  commenced  and  sued  within  twenty  years  after  the  cause 
of  such  actions  or  suits  ;  while  §  5^  contains  a  proviso,  that,  if 
any  acknowledgment  shall  have  been  made,  either  by  writing 
signed  by  the  party  liable  by  virtue  of  such  indenture,  specialty, 
or  recognisance,  or  his  agent,  or  by  part  payment  or  part  satisfac- 
tion on  account  of  any  principal  or  interest  being  then  due 
thereon,"  the  person  entitled  to  such  action  may  bring  it  for  the 
money  remaining  unpaid  and  so  acknowledged  to  be  due,  within 
twenty  years  after  such  acknowledgment  by  writing,  or  part  pay- 
ment or  part  satisfaction  as  aforesaid  ;  and  the  plaintiff  may,  by 
way  of  replication,  state  such  acknowledgment,  and  that  such 
action  was  brought  within  the  time  aforesaid  in  answer  to  a  plea 
of  the  statute.^  As  this  Act  contains  no  clause  corresponding 
with  §  3  of  Lord  Tenterden's  Act,  it  seems  clear  that, — provided 
the  point  be  properly  raised  by  the  pleading, — the  acknowledgment 
of  the  debt  afforded  by  the  payment  of  interest  or  part  payment  of 
principal  may,  in  the  case  of  bonds  and  other  specialties,  be  still 
proved  in  the  same  manner  as  formerly  ;  that  is,  by  producing  the 
document  and  showing  that  it  bears  indorsements  of  such  pay- 
ments, even  though  these  indorsements  were  written  or  adopted 
by  the  creditor  himself,  through  whom  the  plaintiff  claims.  The 
only  difference  between  the  old  and  new  law  is,  that,  whereas  this 
evidence  was  formerly  admissible  in  answer  to  a  plea  of  payment, 
it  is  now  received  in  support  of  a  replication  setting  up  an  acknow- 
ledgment by  the  defendant,  where  the  original  demand  has  been 
met  by  a  plea  of  the  statute. 


1  See  post,  U  1090,  1091. 

2  In  Roddam  v.  Morley,  26  L.  J.,  Ch.  438  ;  1  De  Gex  &  J.  1,  S.  C,  it  was 
held  that  payment  of  interest  on  a  bond  by  the  tenant  for  life  for  certain  land 
under  the  will  of  the  obligor,  prevented  this  statute  from  barring  the  action 
against  the  heirs  and  devisees  in  remainder,  after  the  expiration  of  twenty 
years  from  the  time  of  the  bond  becoming  due.  See  Pears  v.  Laing,  40  L.  J., 
Ch.  225,  per  Bacon,  V.-C;  12  Law  Rep.,  Eq.  41,  S.  C.  But  see  Coope  v. 
Cresswell,  2  Law  Rep.,  Ch.  App.  112;  36  L.  J.,  Ch.  114,  S.  C,  overruling 
S.  C.  as  decided  by  Kindersley,  V.-C;  35  L.  J.,  Ch.  496;  1  Law  Rep.,  Eq. 
106,  S.  C;  and  Dickenson  v.  Teasdale,  1  De  Gex,  J.  &  S.  52  ;  32  L.  J.,  Ch, 
37,  S.  C. 

*  As  to  the  Irish  Law,  see  16  &  17  V.,  c.  113,  U  20—24. 

(3475) 


608  EXTRINSIC    EVIDENCE    OF    DATE    OF   INDORSEMENT.      [PAET 11. 

§  093.   It  becomes  then  important  to  solve  the  question  whether    ?^  (J26 
it  be,  or  be  not,  necessary  to  prove  by  evidence  dehors  the  instru- 
ment itself,  that  the  indorsement,  vehich  is  put  in  for  the  purpose 
of  establishing  payment  of  interest,  or  part  payment  of  principal, 
was  written  at  a  time  when  it  was  against  the  interest  of  the  creditor 
to  make  it ;  or,  •in  other  words,  that  it  was  written  before  his  right 
of  action  was  barred  by  th.e  statute  ;  and  here,  notwithstanding  some 
apparent    authorities    to    the  contrary,    it    is  submitted  that  this 
question  must  be  answered  in  the  affirmative.     The  principle  of  ad- 
mitting such  indorsements  in  favour  of  parties  in  privity  with  the 
persons  making  them,  is  an  anomaly  in  the  law,  which  cannot  be 
supported  by  any  of  the  reasons  whereon  the  admissibility  of  rectors' 
books  is  made  to  rest,'  and  which,  so  far  as  regards  parol  instru- 
ments, has  been  expressly  reprobated  by  the  Legislature."     It  is 
therefore  not  unreasonable  to  contend,  that  the  courts  should  require 
strict  proof  of  the  time  when  the  indorsements  were  really  made, 
before  they  consent  to  admit  them  in  evidence.     In  ordinary  cases, 
the  law  may  safely  presume  that  a  document  was  written  at  the 
time  it  bears  date ;  but  an  exception  to  this  rule  has  been  recog- 
nised,^ where,  under  the  old  law  of  bankruptcy,  a  note  signed  by  a 
bankrupt  was  put  in  by  his  assignees  to  support  the  petitioning 
creditor's  debt.     Now,  why  was  this  exception  allowed  ?     Clearly, 
because  it  was  so  much  to  the  interest  of  the  petitioning  creditor 
to  support  the  fiat,  that  he  might  collusively  induce  the  bankrupt 
to  antedate  the  instrument,  by  means  of  which   his  debt  was  to  be 
established.     Then,  does  not  this  reasoning   apply  equally  to  the 
indorsements  unler  discussion,*  which,  if  really  made  within  twenty 
years  from  the  date  of  the  bond,  are  received,  because  being  in  such 
case  entries  against  the  interest  of  the  obligee,   they  are  presumed 
to  be  true  ;  but,  if  made   beyond  the  twenty  years,  are  rejected, 
because,  after  the  lapse  of  that  time,  it  would  be  so  obviously  to  the 
advantage  of  the  obligee  to  revive,  by  their  means,   the  remedy 
barred  by  the  statute,  that  the  law  presumes  they  are  false  ?     But 
surely  it  is  as  easy  to  fabricate  a  date,  as  to  fabricate  an  indorse- 


1  Ante,  §  688.  ^  9  G.  4,  c.  14,  ?  3. 

^  Ante,  ?  169.     See,  also,  another  exception  noticed,  ante,  §§  169,  582. 
*  See  Potez  v.  Glossop,  2  Ex.  R.  194,  195,  per  Parke,  B. 

(3476) 


CHAP.  XI.  ]        EXTRINSIC  EVIDENCE  OF  DATE  OF  INDORSEMENT.  609 

ment,  of  which  the  date  forms  part,  and  it  seems  a  strange  mode 
of  checking  such  fraudulent  practices  to  say  to  an  obligee,  "  Your 
remedy  on  the  bond  is  barred  by  the  statute,  and  therefore  if  you 
now  indorse  upon  it  any  admission  that  you  have  received  some 
interest  from  the  obligor,  no  credit,  after  your  death,  will  be  given 
to  such  admission;  but  carry  on  your  deceit  one  step  fiirther,  and 
add  to  your  indorsement  a  date,  which  will  give  it  the  semblance 
of  having  been  made  while  your  remedy  was  unimpaired,  and 
then,  at  your  death,  your  representatives  may  recover  against  the 
obligor." 

§  694  The  authorities  on  this  subject  lay  down  no  decisive  rule.  ^  ^^7 
In  the  case  of  Searle  v.  Lord  Barrington,  extrinsic  evidence  was 
given  of  the  time  when  the  indorsements  were  made,'  though  that 
fact  is  only  mentioned  loosely  by  Mr.  Brown,^  and  is  not  noticed  at 
all  by  the  other  reporters.^  In  Bosworth  v.  Cotchett*  it  seems, 
indeed,  to  have  been  unsuccessfully  contended  before  the  House  of 
Lords,  that  unless  evidence  were  given,  independent  of  the  note, 
to  show  when  the  indorsements  were  made,  they  could  not  be  re- 
ceived;^ but  as  that  case  is  not  reported,  and  is  noticed  so  shortly 
by  our  text  writers*'  that  the  grounds  of  the  decision  cannot  be 
ascertained,  it  will  scarcely  be  considered  as  a  binding  authority.  In 
Sanders  v.  Meredith,  in  addition  to  an  indorsement  signed  by  the 
obligee,  a  witness  was  called,  who  proved  actual  payment  of  the 
interest  The  case  of  Gleadow  v.  Atkin  ^  throws  but  little  light 
upon  the  subject.  There  the  payment  of  interest  by  the  obligor  to 
a  stranger  was  proved;  and  in  order  to  show  that  this  payment  had 
been  made  on  account  of  the  bond,  the  executors  of  the  obligee 
relied  on  an  indorsement  in  his  handwriting,  whereby  he  acknow- 


1  Per  Bayley,  B.,  in  Gleadow  r.  Atkin,  1  C.  &  M.  421,  424,  stating  the  result 
of  his  own  researches. 

^  3  Br.,  P.  C,  594,  where  the  reporter  says  that  "other  circumstantial  evi- 
dence" was  given  to  prove  that  the  bond  had  not  been  satisfied. 

3  2  Str.  826;  8  Mod.  278;  2  Ld.  Ray.  1370. 

*  Judgment  in  Dom.  Proc.  6  May,  1824. 

*  Per  Vaughan,  B.,  in  Gleadow  v.  Atkin,  1  C.  &  M.  428.  His  lordship  was 
of  counsel  in  Bosworth  v.  Cotchett. 

*  1  Ph.  Ev.  333;  3  St.  Ev.  824.  In  this  last  work  the  case  is  cited  as  Parr  v. 
Cotchett.  '  3  M.  &  K.  116.  »  j  C.  &  M.  410. 

(3477) 


610  now  DATE  OF  INDORSEMENT  PROVED.  [PAET  II. 

ledged  that  the  principal  sum  due  on  the  bond  was  trust-money,  to 
which  the  stranger  was  entitled.  This  indorsement  bore  the  same 
date  as  the  bond  itself,  and  was  countersigned  by  the  attesting  wit- 
ness of  the  bond.  The  court  held  that  it  was  admissible  in  evidence, 
and  rightly  so;  because,  in  the  first  place,  many  circumstances 
concurred  to  show  that  the  indorsement  was  written  on  or  about 
the  day  of  the  date,  and  next,  it  signified  little  when  it  was  written, 
as  it  was  equally  against  the  interest  of  the  obligee  at  all  times.' 


§  695.  The  only  case  which  directly  supports  the  presumption  ^  628 
in  question  is  that  of  Smith  v.  Battens.^'  There  the  point  was, 
whether  an  indorsement  of  interest  on  a  promissory  note,  which 
bore  date  before  the  first  of  January,  1829,  when  Lord  Tenterden's 
Act  came  into  operation,  could  be  admitted  in  evidence  for  the 
purpose  of  taking  the  case  out  of  the  statute,  without  some  ex- 
trinsic proof  of  the  time  when  it  was  actually  written;  and  Mr. 
Justice  Taunton. — apparently  on  the  authority  of  Bosworth  v.  Cot- 
chett,^ — received  it,  observing,  that,  "  in  the  absence  of  all  evidence 
to  the  contrary,  he  should  assume  that  it  was  written  at  the  time 
it  bore  date."  Now,  although  this  case  was  subsequently  cited  with 
approbation  by  the  Court  of  Common  Pleas,*  and  by  Lord  Justice 
Turner,  on  a  more  recent  occasion,^  as  supporting  the  general 
doctrine  that  documents  are  presumed  to  have  been  written  at  the 
time  they  bear  date,  it  may  be  doubted  whether,  with  respect  to  the 
particular  question  before  the  court,  the  case  be  law.  To  throw  on 
the  defendant  the  burthen  of  proving  negatively  that  the  indorse- 
ment was  not  written  on  the  day  of  the  date,  was  in  fact  to  shut 
the  door  upon  all  inquiry  into  the  matter;  because,  as  the  note 
continued  in  the  hands  of  the  payee  or  his  representatives,  it  was 
scarcely  possible  for  the  maker  to  ascertain  at  what  time  any  in- 
dorsement was  written  upon  it. 

§  696.  This  view  of  the  subject  is  much  confirmed  by  the  language    ^  629 


»  See  per  Bayley,  B.,  1  C.  &  M.  417.  M  M.  &  Rob.  341. 

^  Cited  in  the  Report  as  Parr  v.  Crotchett. 

*  In  Anderson  v.  Weston,  6  Bing.  N.  C.  302,  303. 

*  Briggs  V.  Wilson,  5  De  Gex,  M.  &  G.  20. 

(3478) 


CUAP.  XI.]  now  DATE  OF  INDORSEMENT  PROVED.  611 

of  Lord  Ellenborougb  in  Rose  v.  Bryant,'  wliere  the  adminis- 
trator of  an  obligee  of  a  bond,  for  the  purpose  of  meeting  certain 
direct  evidence  of  payment  in  the  year  1794,  proposed  to  read  an 
indorsement,  which  appeared  to  have  been  made  on  the  bond  in  the 
following  year,  and  which  acknowledged  the  receipt  of  interest  and 
of  part  of  the  principal.  In  refusing  to  admit  this  evidence,  his 
lordship  said,  "I  think  you  must  prove  that  these  indorsements 
were  on  the  bond  at  or  recently  after  the  times  when  they  bear  date, 
before  you  are  entitled  to  read  them.  Although  it  may  seem  at 
first  sight  against  the  interest  of  the  obligee  to  admit  part-payment, 
he  may  thereby  in  many  cases  set  up  the  bond  for  the  residue  of  the 
sum  secured.  If  such  indorsements  were  receivable  whensoever 
they  might  have  been  written,  this  would  be  allowing  the  obligee  to 
manufacture  evidence  for  himself  to  contradict  the  fact  of  payment. 
I  have  been  at  a  loss  to  see  the  principle  on  which  these  receipts, 
in  the  handwriting  of  the  creditor,  have  sometimes  been  admitted 
as  evidence  against  the  debtor  ;  and  I  am  of  opinion  they  cannot 
be  properly  admitted,  unless  they  are  proved  to  have  been  written 
at  a  time  when  the  effect  of  them  was  clearly  in  contradiction  to  the 
writer's  interest."  Perhaps  the  safest  rule  that  can  be  laid  down 
on  this  subject  is,  that  if  the  indorsement  ajypear  by  its  date  to 
have  been  written  within  the  twenty  years,  the  question  may  be  left 
to  the  jury,  under  all  the  circumstances  of  the  case,  whether  it  were 
really  so  written  f  the  law  raising  no  presumption  either  way. 


»  2  Camp.  321 

2  See  per  Vanghan,  B.,  in  Gleadow  v.  Atkin,  1  C.  &  M.  426. 


18  LAW  OF  EVin.— V.  II.  (3479) 


612  DECLARATIONS   IN  BUSINESS,  WHY  ADMISSIBLE.  [pART  II. 


CHAPTER  XII. 

DECLARATIONS  IN  TDE  COURSE  OF  OFFICE  OR  BUSINESS. 

§  097.  In  many  of  the  cases  cited  in  the  preceding  chapter,  the  ?  g:50 
admissibility  of  the  statements  and  entries  tendered  in  evidence 
rested  on  the  ground,  not  only  of  their  being  prejudicial  to  the 
pecuniary  or  proprietary  interests  of  the  parties  making  them,  but 
of  their  having  been  made  in  the  ordinary  course  of  business  or 
professional  employment.  The  class  of  cases,  therefore,  which 
forms  the  fifth  exception  to  the  rule  rejecting  hearsay  evidence, 
consists  of  such  declarations  as  fall  within  this  last  category.  The 
considerations  which  have  induced  the  courts 'to  recognise  this 
exception  appear  to  be  principally  these  ; — that,  in  the  absence  of 
all  suspicion  of  sinister  motives,  a  fair  presumption  arises  that 
entries  made  in  the  ordinary  routine  of  business  are  correct,  since, 
the  process  of  invention  implying  t'-ouble,  it  is  easier  to  state  what 
is  true  than  what  is  false  ;  that  such  entries  usually  form  a  link  in 
a  chain  of  circumstances,  which  mutually  corroborate  each  other ; 
that  false  entries  would  be  likely  to  bring  clerks  into  disgrace 
with  their  employers  ;  that  as  most  entries  made  in  the  course  of 
business  are  subject  to  the  inspection  of  several  persons,  an  error 
would  be  exposed  to  speedy  discovery  ;  and  that  as  the  facts  to 
which  they  relate  are  generally  known  but  to  few  persons,  a  relaxa- 
tion of  the  strict  rules  of  evidence  in  favour  of  such  entries  may 
often  prove  convenient,  if  not  necessary,  for  the  due  investigation  of 
truth.i  * 

§  698.'^  One  of  the  earliest  cases,^  illustrative  of  this  subject,    |  631 
was  an  action  for  beer  sold  and  delivered,  the  plaintiff    being  a 

1  Poole  V.  Dicas,  1  Bing.  N.  C.  653,  per  Tlndal,  C.  J. ;  1  Ph.  Ev.  319  ;  1 
St.  Ev.  348,  349.  '  Gr.  Ev.  ?  116,  in  part. 

=*  Price  V.  Torrington,  1  Salk.  285 ;  2  Ld.  Ray.  873 ;  1  Smith.  L.  C.  277, 
S.  C. ;  Pitman  v.  Maddox,  2  Salk.  690  ;  2  Ld.  Ptay.  732,  S.  C. ;  Rowcroft  v. 
Basset,  Pea.  Add.  Cas.  199,  200,  per  Le  Blanc,  J. 

(3480) 


CHAP.  XII.]    DECLARATIONS  IN  COURSE  OF  OFFICE  OR  BUSINESS.         613 

brewer.  In  order  to  prove  the  delivery,  it  was  first  shown  that, 
in  the  usual  course  of  the  plaintiff's  business,  the  draymen  came 
every  night  to  the  clerk  of  the  brewhouse,  and  gave  him  an 
account  of  the  beer  delivered  during  the  day,  which  he  entered 
in  a  book  kept  for  that  purpose,  to  which  the  draymen  set  their 
hands.  An  entry  in  this  book,  which  stated  the  delivery  of  the 
beer  in  question,  and  was  signed  by  a  drayman,  whose  signature 
and  death  were  proved,  was  then  put  in,  and  Lord  Holt  held  that 
it  was  sufficient  evidence  to  maintain  the  action.  So,  where  the 
question  was  whether  a  notice  to  quit  had  been  served  upon  a 
tenant,  the  indorsement  of  service  upon  a  copy  of  the  notice,  made 
by  the  attorney  who  served  it,  was  held  after  his  death  to  be  • 
admissible  in  proof  of  that  fact;  it  being  shown  to  be  the  ordinary 
course  of  business  in  his  office  to  preserve  copies  of  such  notices, 
and  to  indorse  the  service  thereon.' 

§  699.  So,  an  entry  by  a  deceased  solicitor  in  his  diary,  noting  §  G31 
the  fact  of  his  having  attended  a  client  on  a  certain  day  on  her 
executing  a  deed  of  appointment,  has  been  held  sufficient  evidence 
of  the  due  execution  of  the  deed.^  So,  an  entry  of  the  recei[)t  of 
rates  by  a  deceased  clerk  of  a  collector,  who  was  duly  appointed, 
has  been  received  as  evidence  of  the  payment  of  the  rates.^  So, 
also,  the  books  of  the  messenger  of  a  bank,  and  of  the  clerk  of  a 
notary,  have  been  held  admissible  to  prove  the  dishonour  of  a  bill 
of  exchange  by  the  acceptor,  and  notice  to  the  indorser,  upon  proof 
that  the  entries  were  made  in  the  usual  routine  of  business;*  and 
upon  like  proof,  the  letter-book  of  the  plaintiff,  who  was  a  merchant, 


^  Doe  V.  Tnrford,  3  B.  &  Ad.  890;  K.  v.  Cope,  7  C.  &  P.  720,  727,  per 
Ld.  Denman;  E.  v.  Dukiutield,  11  Q.  B.  678;  Stapylton  v.  Clough,  2  E.  & 
B.  933. 

^  Rawlins  v.  Rickards,  28  Beav.  370.  See  Bright  v.  Legerton,  30  L.  J., 
Ch.  338;  2  De  Gex,  F.  &  J.  606,  S.  C. ;  per  Ld.  Campbell,  C,  overruling  in 
part  a  decision  by  Romilly,  M.  R.,  in  S.  C,  reported  29  L.  J.,  Cli.  852;  29 
Beav.  60,  S.  C.     But  see  Kerin  v.  Davoren,  12  Ir.  Eq.  R.,  N.  S.  352. 

3  R.  V.  St.  Mary,  Warwick,  22  L.  J.,  M.  C.  109. 

*  Sutton  V.  Gregory,  Pea.  Add.  Cas.  150,  per  Ld.  Kenyon;  Poole  v.  Dicas, 
1  Bing.  N.  C.  649;  1  Scott,  600;  7  C.  &  P.  79,  S.  C. ;  Nichols  r.  Webb,  8 
Wheat.  326;  Welch  v.  Barrett,  15  I\I;\ss.  380;  Halliday  v.  Martinett,  20  Jolins. 
168;  Butler  r.  Wright,  2  Wend.  369;  Hart  v.  Williams,  id.  513;  Nicholls  v. 
Goldsmith,  7  Wend.  160. 

(3481) 


614  DISINCLINATION  TO  EXTEND  THE  RULE.  [PART  11. 

in  which  a  deceased  clerk  had  inserted  what  purported  to  be  the 
copy  of  a  letter  to  the  defendant,  and  had  further  made  a  memo- 
randum stating  that  he  had  sent  the  original  letter,  has  been 
admitted  as  evidence  of  the  fact  of  sending  the  letter,  as  also  of  its 
contents,  the  defendant  having  been  served  with  notice  to  produce 
the  original.'  So,  where  a  police-constable  had  made,  in  the  course 
of  his  duty,  a  verbal  repDrtto  his  inspector,  stating  where  he  was 
going  and  what  he  was  about  to  do,  this  report  was  held  to  be 
admissible  as  evidence  for  the  Crown  on  the  trial  of  an  indictment, 
which  charged  the  prisoner  with  the  murder  of  the  policeman.^ 

§  700.  Though  the  cases  cited  above  have  established  beyond  ?  632 
dispute  the  existence  of  the  exception  now  under  discussion, 
several  of  the  judges  have,  of  late  years,  evinced  great  disinclina- 
tion to  extend  its  principle  beyond  the  limits  strictly  warranted  by 
antecedent  decisions.^  Thus,  in  an  action  for  the  price  of  coals, 
which  had  been  sold  at  the  pit's  mouth,  an  entry  was  rejected, 
which  appeared  to  have  been  made  in  the  following  manner.  In 
the  ordinary  course  of  business,  it  was  the  duty  of  one  of  the 
workmen  at  the  pit,  named  Harvey,  to  give  notice  to  the  foreman 
of  the  coal  sold;  and  the  foreman,  who  was  not  present  when  the 
coal  was  delivered,  and  who  was  unable  to  write,  used  to  employ 
a  man  named  Baldwin  to  make  entries  in  the  books  from  his 
dictation.  Baldwin  road  over  these  entries  every  evening  to  the 
foreman.  At  the  time  of  the  trial,  Harvey  and  the  foreman  were 
dead,  and  Baldwin  was  called  to  produce  this  book,  with  the  view 
of  proving  thereby  the  delivery  of  the  coal  in  question;  but  the 
court  held  that  it  was  inadmissible.*  The  ground  of  this  decision 
appears  to  have  been,  that,  although  the  entries,  being  made 
Tinder  the  foreman's  direction,  might    be    regarded  as    made    by 

'  Pritt  V.  Fiiirflongh,  3  Camp.  305;  Hagedorn  v.  Reid,  id.  379.  See,  also, 
Champneys  f.  Peck,  1  Stark.  R.  404;  Doe  «.  Langfield,  16  M.  &  W.  497.  515; 
East  Union  Rail.  Co.  v.  Symonds,  5  Ex.  R.  237;  6  Rail.  Cas.  578,  S.  C.  But 
see  Rowlands  v.  De  Vecclii,  1  Cab.  &  El.  10,  per  Day,  J. 

«  R.  V.  Buckley,  13  Cox,  293,  per  Lush  &  Mellor,  Js. 

«  See  Doe  «.  Skinner,  3  Ex.  R.  84;  Smith  v.  Blakey,  36  L.  J.,  Q.  B.  156; 
2  Law  Rep.,  Q.  B.  326;  8  B.  &  S.  157,  S.  C;  The  Henry  Coxon,  47  L.  J., 
Adm.  83;  L.  R.,  3  P.  D.  156,  S.  C;  Massey  v.  Allen,  49  L.  J.,  Ch.  76,  per 
Hall,  V.-C;  L.  R.,  13  Ch.  D.  558,  S.  C. 

♦  Brain  v.  Preece,  11  M.  &  W.  773. 

(3482) 


CHAP.  XII.]  LEGISLATIVE  RECOGNITION  OF  RULE.  615 

him,  yet,  inasmuch  as  he  had  no  personal  knowledge  of  the  facts 
stated  in  them,  but  derived  his  information  at  second-hand  from 
the  workman,  there  was  not  the  same  guarantee  for  the  truth  of 
the  entries  as  might  be  found  in  Price  v.  Torrington,  Doe  v.  Tur- 
ford,  and  Poole  v.  Dicas;  in  all  of  which  cases  the  party  making 
the  entry  had  himself  done  the  business,  a  memorandum  of  which 
he  had  inserted  in  his  book. 


§  701.  It  seems  more  difficult  to  reconcile  the  case  of  Davis  v.  I  633 
Lloyd  '  with  sound  principle,  o;-  with  previous  decisions.  There, 
in  order  to  show  that  a  Jew  was  of  age,  it  was  proved  that  Jewish 
children  were  circumcised  on  the  eighth  day  from  their  birth,  and 
that  it  was  the  duty  of  the  chief  rabbi  to  perform  this  rite,  and 
to  make  an  entry  thereof  in  a  book  kept  at  the  synagogue.  Upon 
proof  that  the  rabbi  was  dead,  this  book  was  tendered  in  evidence; 
but  Lord  Denman,  after  consulting  Mr.  Justice  Patteson,  rejected 
it,  though  it  does  not  appear  on  what  grounds.  In  another  case,^ 
where  it  was  necessary  to  show  that  a  contract  of  service  had 
been  for  less  than  a  year,  proof  was  given  that  the  employer,  who 
was  dead,  had  in  the  course  of  his  business  been  in  the  habit  of 
hiring  farm  servants,  and  that  his  practice  was  to  enter  the  time 
and  terms  of  such  hiring  in  a  book  kept  by  him  for  that  purpose. 
This  book,  which  contained  entries  of  the  service  in  question, 
and  showed  that  the  servant  had  been  engaged  for  half  a  year  only, 
was  tendei'ed  in  evidence;  but  the  court  held  that  it  was  inadmis- 
sible, on  the  ground  that,  although  it  might  be  the  practice,  it  was 
not  the  duty,  of  the  master  to  make  such  entries. 

§  702.  The  Legislature  has  in  one  instance  recognised  and  g  634 
acted  upon  the  exception  under  discussion;  for  the  statute,  which 
now  regulates  the  Civil  Bill  Courts  in  Ireland,^  enacts  in  §  19, 
that  "  a  book  or  books  shall  be  kept  by  every  officer  appointed 
for  the  service  of  prC'Cess,  in  such  form  as  shall  be  directed  or 
approved  by  the  chairman  or  assistant  barrister;  in  which  shall 
be  entered  the  names  of  the  plaintiff  and  defendant  by  or  against 
whom  any  process  shall  be  issued,  the  cause  of  action,  the  day  on 


1  1  C.  &  Kir.  275.         ^  jj   ^  Worth,  4  Q.  B.  132.         ^  14  &  15  y.,  c.  57.,  Ir. 

(3483) 


616         ENTRIES  CONTEMPORANEOUS  WITH  ACTS  NARRATED.     [PART  II. 

which  such  process  shall  be  receivetl  to  be  served,  the  clay  on 
which  such  process  shall  be  served  or  executed,  the  place  where, 
and  the  name  or  description  of  the  person  on  or  with  whom,  such 
process  shall  be  served  or  left,  and  in  case  any  such  process  shall 
not  have  been  duly  served  or  left,  then  the  cause  of  such  service 
not  having  been  effected  shall  be  stated  ;  and  each  and  every 
process-officer  shall  attend,  and  produce  such  book  or  books  to 
the  chairman  or  assistant  barrister,  at  each  and  every  sessions 
of  the  peace,  or  shall  cause  such  book  or  books  to  be  produced  to 
such  chairman  or  barrister  in  case  of  the  unavoidable  absence  of 
such  process-officer  ;  and  in  case  of  the  death,  ilhiess,  or  such 
absence  as  aforesaid  of  any  such  process-officer,  the  book  or  books 
of  such  process  officer,  kept  by  him  as  aforesaid,  verified  on  oath 
as  to  his  handwriting  by  some  credible  person,  shall  be  produced 
at  the  sessions,  and  shall  there  be  prima  facie  evidence  of  the  truth 
of  the  several  matters  entered  therein  as  aforesaid." 

§  703.  In  many  respects  the  rules  which  regulate  the  reception  §  635 
of  this  species  of  evidence,  are  the  same  as  those  which  prevail 
with  respect  to  declarations  against  interest.  For  instance,  the 
death,^  the  handwriting,  and  the  official  character,^  of  the  person 
who  made  the  entry  must  be  proved;  and  it  should  further  appear 
that  he  had  no  motive  to  misstate.  In  some  particulars,  however, 
a  marked  distinction  exists  between  the  two  classes  of  cases. 


§  704.  First,  in  order  to  render  admissible  entries  made  in  the  §  636 
course  of  office  or  business,  they  must, — unlike  declarations  against 
interest, — be  proved  to  have  been  made  contemjwraneously  icith  the 
acts  ivhich  they  relate.^  This  distinction  was  expressly  pointed  out 
by  Mr.  Baron  Parke  in  Doe  v.  Turford.  "  It  is  to  be  observed," 
said  the  learned  judge,  "  that  in  the  case  of  an  entry  against 
interest,  proof  of  the  handwriting  of  the  party,  and  of  his  death,  is 
enough  to  authorise  its  reception;  at  whatever  time  it  was  made 
it  is  admissible:    but  in  the   other  ease  [of   an  entry  made  in  the 


*  See  Cooper  v.  Marsden,  1  Esp.  1,  per  Ld.  Kenyon.     See  ante,  §  669. 

2  Doe  V.  "\Vittcomb,  6  Ex.  R.  601. 

3  Doe  V.  Beviss,  18  L.  J.,  C.  P.  128;  7  Com.  B.  456,  S.  C;  Doe  v.  Skinner, 
3  Ex.  E.  88,  per  Parke,  B. 

(3484) 


CHAP.  XII.]      INADMISSIBLE  TO  PROVE  INDEPENDENT  MATTERS.  617 

course  of  business],  it  is  essential  to  prove  that  it  was  made  at 
the  time  it  purports  to  bear  date;  it  must  be  a  contemporaneous 
entry.'"  In  using  the  word  "  contemporaneous,"  it  is  not  meant 
that  the  entry  must  have  been  made  at  the  immediate  time  of  the 
occurrence;  but  it  will  be  sufficient  if  made  within  so  short  a 
time  after,  as  reasonably  to  be  considered  part  of  the  transaction. 
Thus,  if  the  business  be  done  in  the  morning,  and  the  entry  be 
made  in  the  evening  of  the  same  day,^  or  perhaps  even  on  the 
following  morning,^  it  will  be  sufficient ;  though,  where  several 
intermediate  days  had  elapsed  between  the  date  cf  the  transaction 
and  the  time  of  inserting  an  entry  of  it  in  the  book,  the  evidence 
has  been  rejected;*  and  in  one  American  case,  the  interval  of  a 
single  day  was  held  to  constitute  a  valid  objection.^  The  fact 
that  the  entry  was  made  contemporaneously  may,  like  any  other 
fact,  be  established  either  by  direct  testimony,  or  by  proof  of  any 
circumstances  sufficient  to  raise  a  reasonable  inference  that  such 
was  the  case.^ 


§  705.  Secondly,  it  has  been  shown  in  the  last  chapter,  that  decla-  ?  637 
rations  against  interest  are  often  admissible  to  prove  independent 
matters^  which,  though  forming  part  of  the  entry,  are  not  in  them- 
selves against  the  interest  of  the  declarant.^  A  stricter  rule,  how- 
ever, prevails  with  respect  to  official  or  business  entries,  and  it  has 
been  held  that,  "  whatever  effect  may  be  due  to  an  entry  made  in 
the  course  of  office,  reporting  facts  necessary  to  the  performance 
of  a  duty,  the  statement  of  other  circumstances,  however  naturally 
they  may  be  thought  to  find  a  place  in  the  narrative,  is  no  proof  of 
those  circumstances."  *     In  the  case  which  called  forth  these  obser- 

1  3  B.  &  Ad.  897,  898,  cited  and  approved  by  Park,  J.,  in  Poole  v.  Dicas, 
1  Bing.  N.  C.  654,  655. 

■^  Price  V.  Torriugton,  1  Salk.  285;  Ray  v.  Jones,  2  Gale,  220;  Curren  v. 
Crawford,"  4  Serg.  &  R.  3,  5.  ^  Ingraham  v.  Bockins,  9  Serg.  &  R.  285. 

*  Forsytlie  v.  Norcross,  5  Watts,  432. 

*  Walter  v.  Bollman,  8  Watts,  544. 

8  East  Union  Rail.  Co.  v.  Symonds,  5  Ex.  R.  237;  6  Rail.  Cas.  578,  S.  C. 
■  Ante,  ??  677—679. 

*  Chambers  v.  Bernasconi,  1  C.  M.  &  R.  368.  per  Ld.  Dennian,  ])ronouncing 
the  unanimous  opinion  of  the  Ex.  Ch.  See,  also,  Percival  v.  Nanson,  7  Ex.  R. 
3,  per  Pollock,  C.  B.  ;  and  Polini  v.  Gray  and  Sturla  r.  Freceia.  L.  R.,  12 
Ch.  D.  411,  per  Ct.  of  App.;  49  L.  J.,  Ch.  41,  S.  C. ;  S.  C.  in  Dom.  Pr.,  50 
L.  J.,  Ch.  D.  86. 

(3485) 


G18  now  FAR  CORROBORATIVE  EVIDENCE  NECESSARY.       [pART  II. 

vations,  it  became  necessary  to  show  in  what  place  the  plaintiff  had 
been  arrested;  and  in  order  to  do  this,  a  certificate  of  a  deceased 
sheriff 's  officer,  which  had  been  retnrued  by  him  to  the  office  in 
the  ordinary  routine  of  his  daty,  and  which  specified,  among  other 
circumstances  connected  with  the  arrest,  the  spot  where  it  took 
place,  was  tendered  ia  evidence;  but  the  judges  of  the  Exchequer 
Chamber,  before  whom  the  question  was  argued  on  a  bill  of 
exceptions, — while  they  admitted,  for  the  sake  of  argument,  that 
the  certificate  was  evidence  of  the  arrest  itself,  as  also  of  the  day 
when  it  was  made,  since  it  might  be  necessary  for  the  officer  to 
make  known  these  facts  to  his  principal, — were  all  clearly  of 
opinion  that  it  could  not  be  received  to  show  the  particular  spot 
where  the  caption  took  place,  that  circumstance  being  merely 
collateral  to  the  duty  done. ^  "This  decision,"  as  was  afterwards 
observed  by  Mr.  Justice  Park,  ''turned  on  the  circumstance 
that  the  sheriff 's  officer  was  going  beyond  the  sphere  of  his  duty 
when  he  made  an  entry  of  the  place  of  arrest,  and  that  such  an 
entry  therefore  had  no  claim  to  be  received  as  evidence  of  that 
fact."' 


§  706.  Some  persons  contend  that  the  rule  under  discussion  is  §  638 
subject  to  a  third  qualification,  which  certainly  does  not  apply  to 
declarations  against  interest,  and  which  is  to  this  effect; — namely, 
that  entries  made  in  the  course  of  office  or  business  cannot  be 
admitted,  unless  corroborated  by  other  circumstances  which  render 
it  probable  that  the  facts  therein  recorded  really  occurred.  This 
opinion  seems  to  rest,  partly,  on  a  supposed  dictum  of  Mr.  Justice 
Taunton;^  partly,  on  a  misapprehension  of  the  rule  adopted  by 
Lord  Wensleydale,  that  an  entry  made  in  the  course  of  business 


'  Chambers  v.  Bernasconi,  1  C.  M.  &  11.  347,  368;  4  Tyr.  531,  S.  C. 

'^  Poole  V.  Dicas,  1  Bing.  N.  C.  655.     See,  also,  per  Tindal,  C.  J.,  id.  651. 

^  Doe  V.  Turford,  3  B.  &  Ad.  898,  where  his  lordship  is  made  to  say,  "A 
minute  in  writing  like  the  present,  made  at  the  time  when  the  fact  it  records 
took  place,  by  a  person  since  deceased,  in  the  ordinary  course  of  his  business, 
corroborated  by  other  circumstances  which  render  it  probable  that*  that  fact 
occurred,  is  admissible  in  evidence.  Those  corroborating  circumstances  must 
be  proved;  and  here  many  such  circumstances  did  appear."  Mr.  Phillips 
suggests  that  the  words,  "the  entry  was  made  when,"  have  probably  been 
omitted  by  accident  at  the  place  marked  with  the  star.     1  Ph.  Ev.  324. 

(3486) 


CHAP.  XII.]  ADMISSIBLE.  THOUGH  BETTER  EVIDENCE  ATTAINABLE.    G19 

is  admissible  "  where  it  is  one  of  a  chain  or  combination  of  facts, 
and  the  jjroof  of  one  raises  a  presumption  that  another  has  taken 
place  ;'"  and  partly  on  the  circumstance,  that,  in  one  or  two  of 
the  later  cases  on  the  subject,  confirmatory  evidence,  has  in  fact 
been  adduced,  and  its  existence  has  been  noticed  by  the  court  as 
tending  to  establish  the  correctness  of  the-  entry."  Still,  Mr. 
Phillipps  is  probably  right  in  rejecting  this  qualification,  and  in 
contending  that,  though  corroborative  evidence  must  naturally 
add.  to  the  value  of  entries,  it  cannot  be  deemed  essential  to  their 
admissibility.^ 

§  707.  It  has  further  been  urged  that  entries  in  the  course  of  ?  G39 
business  will  only  be  received,  when  the  nature  of  the  case  is  such 
as  to  render  better  evidence  unattainable;  but  this  limitation  of 
the  rule  has  been  expressly  rejected  in  Poole  v.  Dicas,  where 
Chief  Justice  Tindal,  after  observing  that  Doe  v.  Turford  was  no 
authority  for  the  proposition,  since  in  that  case  persons  might  have 
been  present  when  the  notice  was  served,  continued  thus : — • 
"In  the  present  case,  it  would  operate  as  a  great  hardship  to 
require  the  testimony  of  the  persons  who  might  have  been 
present.  The  clerk  who  presented  the  bill  could  scarcely,  at  the 
distance  of  two  years,  point  out  who  it  was  that  answered  his 
application;  and  if  it  were  necessary  to  call  all  the  persons  who 
resided  at  the  place  of  presentment,  the  expense  and  incon- 
venience would  be  enormous.  The  rejection  of  the  evidence 
which  has  been  received  would  be  a  great  injury  to  the  commercial 
classes,  by  casting  an  unnecessary  difficulty  on  the  holders  of  bills 
of  exchange."* 

§  70S.  From  the  cases  cited  above  it  may  be  collected,  that,  in    §  640 
order  to  bring  a    declaration  within   the  present  exception,  proof 
must  be  given  that  it  was  made  contemporaneously  with  the  fact 


'  Doe  V.  Turford,  3  B.  &  Ad.  897. 

■^  Id.    890,    897;  Poole  v.    Dicas,  1  Scott,  600;  1   Bing.  N.    C.  G49,  6.5:5,  654, 
S.  C. 

3  1  Ph.  Ev.  324.     SeeR.  v.  Cope,  7  C.  &.P.  726,  727,  per  Ld.  Denman. 

*  1  Bing.  N.  C.  654.     The  same  rule  prevails  with  respect  to  declarations 
against  interest,  ante,  ^  681. 

(3487) 


620  SHOP-BOOKS  of  parties,  now  far  adimissible.     [pabt  ii. 

which  it  narrates,  and  in  the  usual  routine  of  business,  by  a 
person  whose  duty  it  was  to  make  the  whole  of  it,'  who  was  him- 
self personally  acquainted  with  the  fact,  who  had  no  interest  in 
stating  an  imtruth,  and  who  is  since  dead;'  and,  provided  all  the 
terms  of  this  proposition  be  satisfied,  it  seems  to  be  immaterial, 
excepting  so  far  as  regai'ds  the  u-eight  of  the  evidence,  that  more 
satisfactory  proof  might  have  been  produced,  that  the  declara- 
tion is  uncorroborated  by  other  circumstances,  or  that  it  consists 
of  a  mere  oral  statement,  which  has  never  been  reduced  to 
writing.* 

§  709.*  In  the  United  States  this  principle  has  been  extended  ?  641 
to  entries  made  by  the  x>arty  himself  in  his  own  shop-books;^  at 
least,  where  they  were  evidently  contemporaneous  with  the  facts 
to  which  they  refer,  and  formed  part  of  the  res  gestae.  Being  the 
acts  of  the  party  himself,  they  are  received  with  the  greater 
caution;  but  still  they  may  be  seen  and  weighed  by  the  jury. 
Though  this  doctrine  is  not  in  accordance  with  the  principles  of 
the  common  law,  at  least  as  now  understood,'^  it  seems  to  have 
been  regarded  as  sound  law  by  the  Legislature,  if  not  by  the 
judges,  in  the  time  of  James  the  First.  In  1609  an  Act  was 
passed'  "  to  avoid  the  double  payment  of  debts,"  which  clearly 
recognised  a  tradesman's  shop-books  as  instruments  of  evidence 
on  his  behalf.  No  doubt  this  statute,  in  modern  times,  has  been 
treated  in  courts  of  justice  as  a  dead  letter;  but,  strangely  enough, 
after  lying  dormant  for  upwards  of  two  centuries,  it  was  in  the 
year  1863  revivified  and  rendered  perpetual  by  the  Act  of  26  and  27 


1  Stapylton  v.  Clough,  2  E.  &  B.  933;  Trotter  v.  Maclean,  L  R.,  13  Ch.  D. 
574,  per  Fry,  J. 

2  See  Doe  v.  Wittcomb,  6  Ex.  R.  601 ;  4   H.  of  L.  Cas.  42.5,  S.  C. 

3  Ante,  ?i  672.  *  Gr.  Ev.  §  118,  in  part. 

^  For  the  American  statutes  and  decisions  on  the  above  subject,  see'  notes  to 
§  641  of  the  first  three  editions  of  this  work;  also  notes  to  Gr.  Ev.  ^  118. 

fi  Ellis  r.  CoANTje,  2  C.  &  Kir.  719,  per  Wilde,  C.  J.;  Smyth  v.  Anderson,  7 
Com.  B.  21.  In  this  last  case  the  books  of  the  plaintiff  were  tendered  in 
evidence  by  him,  to  show  that  he  had,  throughout  a  sale  effected  by  means  of 
an  agent,  debited  the  defendant  as  principal.  The  court,  however,  rejected 
the  evidence.  '^  7  J.  1,  c.  12.. 

(3488) 


CHAP.  XII.]      SHOP-BOOKS  OF  PARTIES,  HOW  FAR  ADMISSIBLE.  621 

v.,  c.  125.  What  will  be  the  practical  result  when  this  Parlia- 
mentary freak  is  brought  under  the  notice  of  the  judges  is  a  ques- 
tion that  cannot  readily  be  answered;  but  thus  much  seems  clear, 
that  the  Act  itself  ought  to  be  inserted  in  this  ])lace.  It  is  a 
curious  specimen  of  quaint  legislation,  and  it  will  at  least  furnish 
useful  hints  when  stale  demands  are  sought  to  be  enforced  in  the 
county  courts. 


§  710.  The  Act  is  as  follows: — "Whereas  divers  men  of  ?  641a 
trades,  and  handicraftsmen,  keeping  shop-books,  do  demand  debts 
of  their  customers  upon  their  shop-books  long  time  after  the 
same  hath  been  due,  and  when,  as  they  have  supposed,  the  par- 
ticulars and  certainty  of  the  wares  delivered  to  be  forgotten,  then 
either  they  themselves,  or  their  servants,  have  inserted  into  their 
said  shop -books  divers  other  wares  supposed  to  be  delivered  to 
the  same  parties,  or  to  their  use,  which  in  truth  never  were 
delivered,  and  this  of  purpose  to  increase  by  such  undue  means 
the  said  debt:  (2.)  And  whereas  divers  of  the  said  tradesmen 
and  handicraftsmen,  having  received  all  the  just  debts  due  upon 
their  said  shop-books,  do  oftentimes  leave  the  same  books  un- 
crossed, or  any  way  discharged,  so  as  the  debtors,  their  executors 
or  administrators,  are  often  by  suits  of  law  enforced  to  pay  the 
same  debts  again  to  the  party  that  trusted  the  said  wares,  or  to 
his  executors  or  administrators,  unless  he  or  they  can  produce 
sufficient  proof,  by  writing  or  witnesses,  of  the  said  payments, 
that  may  countervail  the  credit  of  the  said  shop  books,  which  few 
or  none  can  do  in  any  long  time  after  the  said  payments:  (3. )  Be 
it  therefore  enacted  by  the  authority  of  this  present  Parliament, 
that  no  tradesman  or  handicraftsman  keeping  a  shop-book  as 
is  aforesaid,  his  or  their  executors  or  administrators,  shall  be 
allowed,  admitted,  or  received,  to  give  his  shop  book  in  evidence 
in  any  action  for  any  money  due  for  wares  hereafter  to  be  de- 
livered, or  for  work  hereafter  to  be  done,  above  one  year  before 
the  same  action  brought,  except  he  or  they,  their  executors  or 
administrators,  shall  have  obtained  or  gotten  a  bill  of  debt  or 
obligation  of  the  debtor  for  the  said  debt,  or  shall  have  brought 
or  pursued  against  the  said  debtor,  his  executors  or  adminis- 
trators, some  action  for  the  said  debt,  wares,  or   work  done,  within 

(3489) 


622        merchants'  account-books,  when  admissible,     [part  II. 

one  year  next  after  the  same  wares  delivered,  money  due  for 
wares  delivered,  or  work  done.  II.  Provided  always,  that  this 
Act,  or  anything  herein  contained,  shall  not  extend  to  any  inter- 
course of  traffick,  merchandizing,  buying,  selling,  or  other  trading 
or  dealing  for  wares  delivered  or  to  be  delivered,  money  due,  or 
work  done  or  to  be  done,  between  merchants  and  merchants, 
merchant  and  tradesman,  or  between  tradesman  and  tradesman, 
for  anything  directly  falling  within  the  circuit  or  compass  of  their 
mutual  trades  and  merchandize,  but  that  for  such  things  only 
they  and  every  of  them  shall  be  in  case  as  if  this  Act  had  never 
been  made  ;  anything  herein  contained  to  the  contrary  thereof 
notwithstandi  ng. ' ' 


§  711.  Independent  of  all  statutable  sanction  our  courts  of  ^  ^'^^^^ 
equity  have  for  years  past,  to  a  certain  extent,  acted  upon  the 
principle  of  admitting  shop-books  in  evidence,  where  accounts 
have  been  required  to  be  taken,  and  vouchers  have  been  lost;^ 
and  now,  by  virtue  of  the  Rules  of  the  Supreme  Court,  1883,  the 
court  or  a  judge  may,  at  any  stage  of  the  proceedings  in  a  cause  or 
matter,  direct  any  necessary  accounts  to  be  taken,  and  "may, either 
by  the  judgment  or  order  directing  the  account  to  be  taken,  or  by 
any  subsequent  order,  give  special  directions  with  regard  to  the 
mode  in  which  the  account  is  to  be  taken  or  vouched;  and  in 
particular  may  direct  that,  in  taking  the  account,  the  books  of 
account  in  which  the  accounts  in  question  have  been  kept  shall  be 
taken  as  prima  facie  evidence  of  the  truth  of  the  matters  therein 
contained,  with  liberty  to  the  parties  interested  to  take  such 
objections  thereto  as  they  may  be  advised."  ^ 

§  712.^  In  the  administration  of  the  Eoman  Law,  the  production    ?  642 
of   a  merchant's  or  tradesman's    book  of    accounts,  regularly  and 
fairly  kept  in  the  usual  manner,  was  deemed  presumptive  evidence^ 

'  Lodge  V.  Prichard,  3  De  Gex,  M.  &  G.  908.     See  post,  §  812. 

2  Ord.  XXXII r.,  RK.  2,  3.  For  the  law  in  Ireland,  see  30  &  31  V.,  c.  44, 
?  159,  Ir.  See  Lodge  v.  Prichard,  3  T)e  Gex,  M.  &  G.  906;  Newberry  v. 
Benson,  23  L.  J.,  Ch.  1003,  coram  I.ds.  .Is.;  Ewart  v.  Williams,  3  Drew.  21; 
7  De  Gex,  M.  &  G.  68,  S.  C.  coram  Lds.  .Is. ;  Cookes  v.  Cookes,  3  New  R.  97, 
per  Lds.  Js. ;  O'Grady  v.  Corr,  I.  R.,  10  Eq.  Ill;  Alford  v.  Clay,  L  R.,  9  Eq. 
215.  *  Gr.  Ev.  ^  U9,  verbatim. 

(3490) 


CHAP.  XII.]  tradesmen's  BOOKS — LAW  OF  FRANCE — OF  SCOTLAND.  623 

(semi  plena  probatio) '  of  the  jastice  of  his  claim,  and  in  such 
cases,  the  suppletory  oath  of  the  party  (juramentum  suj)})letivum) 
was  admitted  to  make  up  the  plena  probatio  necessary  to  a  decree 
in  his  favour."  By  the  law  of  France,  too,  the  books  of  merchants 
and  tradesmen,  regularly  kept,  and  written  froin  day  today  without 
any  blank,  when  the  tradesman  bas  the  reputation  of  probity, 
constitute  a  semi-proof,  and,  with  his  suppletory  oath,  are  received 
as  fall  proof  to  establish  his  demand.^  The  same  doctrine  is 
familiar  in  the  law  of  Scotland,  by  which  the  books  of  merchants 
and  others,  if  kei)t  with  such  a  reasonable  degree  of  regularity  as 
to  be  satisfactory  to  the  court,  may  be  received  in  evidence,  the 
party  being  allowed  to  give  his  own  "  oath  in  supplement "  of  such 
imperfect  proof.  It  seems,  however,  that  a  course  of  dealing,  or 
other  '•  pregnant  circumstances,"  must  in  general  be  first  shown 
by  evidence  aliunde,  before  the  proof  can  be  regarded  as  amounting 

^  This  degree  of  truth  is  thns  defined  by  Mascardus: — "Non  est  igno- 
randum  probationem  semipleTiam  earn  esse,  per  quam  rei  geatsa  fides  aliqua 
lit  judici.  non  tameu  tauta  ut  jure  debeat  in  pronuncianda  .sententia  earn 
sequi."  1  de  Prob.,  Qna?st.  11,  n.   1,  4. 

'^"Juramentum  (suppletivum)  defertur  ubicunque  actor  habet  pro  se — 
aliquas  oonjecturas,  per  quas  judex  inducatuv  ad  suspicionem  vel  ad  opinan- 
dum  pro  parte  actoris."  13  Masc.  de  Prob.,  ConcL,  230,  n.  17.  The  civilians, 
however  they  may  differ  as  to  the  degree  of  credit  to  be  given  to  books  of 
account,  concur  in  opinion,  that  they  are  entitled  to  consideration,  at  the  dis- 
cretion of  the  judge.  They  furnish  at  least  the  conjectures  mentioned  by  Mas- 
cardu.s;  and  their  admission  in  evidence,  with  the  suppletory  oath  of  the 
party,  is  thus  defended  by  Paul  Yoet,  de  Statutis,  §  5,  cap.  2,  n.  9: — "An  ut 
credatur  libris  rationem,  sen  registris  uti  loqunntur,  mercatorum  et  artificum, 
licet  probationibus  testium  non  juventur?  Kespondeo,  quam  vis  exemplo  per- 
niciosum  esse  videatur,  quemque  sibi  privata  testatione,  sive  adnotatoine  lacere 
debitorem.  Quia  tamen  htec  est  mercatorum  cura  et  opera,  ut  debiti  et  crediti 
rationes  diligenter  conticiant.  Etiam  in  eorum  foro  et  causis,  e.x  sequo  et  bono 
est  judicandum.  Insuper  non  admisso  aliquo  litium  accelerandarum  remedio, 
commerciorum  ordo  et  usus  evertitur.  Neque  enim  omnes  pra;senti  pecunia 
merces  .sibi  comparant,  neque  cujusque  rei  venditioni  testes  adhiberi,  qui 
pretia  mercium  noverint,  aut  expedit,  aut  congruum  est.  Non  iniqnum  vide- 
bitur  illud  statutum,  quo  domestici.s  falibns  instrumentis  additur  fides,  modo 
aliquibus  adminiculis  juventur."  See,  also,  Hertius,  de  Coll.  Leg.  ?  4,  n.  68; 
7  Stryk.  de  Sem.  Prob.,  Disp.  1,  cap.  4,  §5;  Menoch.,  de  Pra?s.,  lil).  2,  Vrscs. 
57,  n.  20,  and  lib.  .■?,   Pra?s.  63,  n.   12. 

*  Poth.  Obi.,  Part  iv.  ch.  1,  art.  2,  ^  4.  By  the  Code  Napoleon,  mer- 
chants' books  are  required  to  be  kept  in  a  particular  manner  therein 
prescribed,  and  none  others  are  admitted  in  evidence.  Code  de  Commerce, 
Li  v.  1,  tit.  2,  art.  8-12. 

(3491) 


624  merchants'  books  should  be  admissible.        [pakt  ii. 

to  that  degree  of    semi -plena  probatio,  which   may   be  rendered 
complete  by  the  oath  of  the  party/ 


§  713.  Especial  reference  is  here  made  to  these  laws,  because  it    ?  643 
is  conceived  that  the  adoption  of  a  somewhat  similar  practice  in  all 
the  English  and  Irish  com-ts  of  justice  would  prove  highly  benefi- 
cial; especially  in  cases  where  actions  are  brought  or  defended  by 
the  representatives  of  persons  deceased. 


^  Tait,  Ev.  273 — 277.  This  degree  of  proof  is  there  defined  as  "not 
merely  a  suspicion, — but  such  evidence  as  produces  a  reasonable  belief, 
though  not  complete  evidence."  See,  also,  2  Dickson,  Ev.  g  1179,  et.  seq. ; 
Glassf.  Ev.  550;  Bell,  Dig.  378,  898. 


(3492) 


CHAP.  XIII.]        DYING   DECLARATIONS,    WHY    ADMISSIBLE.  625 


CHAPTER  XIII. 


DYING    DECLARATIONS 


§  714'  A  SIXTH  EXCEPTION  to  the  rule  rejecting  hearsay  evi-  §  644 
dence  is  allowed  in  the  case  of  dying  declarations.  The  general 
principle  on  which  this  species  of  evidence  is  admitted,  was 
stated  by  Lord  Chief  Baron  Eyre  to  be  this, — "that  such 
declarations  are  made  in  extremity,  when  the  party  is  at  the  point  of 
death,  and  when  every  hope  of  this  world  is  gone  ;  when  every 
motive  to  falsehood  is  silenced,  and  the  mind  is  induced  by  the 
most  powerful  considerations  to  speak  the  truth  ;  a  situation  so 
solemn  and  so  awful  is  considered  by  the  law  as  creating  an 
obligation,  equal  to  that  which  is  imposed  by  a  positive  oath  in  a 
court  of  justice."'  At  one  time  an  opinion  prevailed  that  this 
general  principle  warranted  the  admission  of  dying  declarations 
in  all  cases,  civil  and  criminal  ;^  and  it  was  expressly  held,  by 
respectable  authorities,  that  the  dying  declarations  of  a  subscrib- 
ing witness  to  a  forged  instrument  could  be  given  in  evidence  to 


'  Gr.  Ev.  §  165,  in  part. 

*  R.  V.  Woodcock,  1  Lea.  502;  R.  v.  Drummo'nd,  id.  338.  Our  great  poet, 
in  King  John,  has  put  the  same  sentiment  into  the  mouth  of  the  wounded 
Melun,  who,  finding  himself  disbelieved  while  announcing  the  intended 
treachery  of  the  Dauphin  Lewis,  exclaims  : — 

"  Have  I  not  hideous  death  within  my  view, 
Retaining  but  a  quantity  of  life  ; 
Which  bleeds  away,  even  as  a  form  of  wax 
Resolveth  from  his  figure  'gainst  the  fire  ? 
What  in  tlie  world  should  make  me  no\c  deceive, 
Since  I  must  lose  the  iise  of  all  deceit? 
Why  should  I  then  be  false;  since  it  is  true 
That  I  must  die  here,  and  live  hence  by  truth? — Act 5,  sc.  4. 

'  It  was  even  held  that  the  dying  declarations  of  a  pauper  respecting  his 
settlement  were  admissible,  though  that  question  involved  both  law  and  fact, 
R.  V.  Bury  St.  Edmunds,  Cald.  486  ;  Abbotun  r.  Dnnswell,  2  Bott,  80.  This 
doctrine  is  now  properly  exploded.  See  R.  v.  Abergwilly,  2  East,  G'6  ;  Stobart 
V.  Dryden,  1  M.  &  W.  626. 

(3493) 


626  DYING    DECLARATIONS,    WHEN    ADMISSIBLE.  [pART   II. 

impeach  it.'  A  contrary  doctrine,  however,  has  since  prevailed;" 
and  it  is  now  settled  law,  both  in  England  and  America,  that  proof 
of  this  description  is  admissible  iu  no  civil  case — and,  in  criminal 
cases,  only  in  the  single  instance  of  homicide,  "  where  the  death  of 
the  deceased  is  the  subject  of  the  charge,  and  the  circumstances  of 
the  death  are  the  subject  of  the  dying  declaration."  ^ 

§  715.  Thus,  on  a  trial  for  robbery,  the  dying  declaration  of  I  "-^'^ 
the  party  robbed  has  been  rejected  ;*  and  where  a  prisoner  was 
indicted  for  administering  drugs  to  a  woman,  with  intent  to 
procure  abortion,  her  statements  in  extremis  were  held  to  be 
inadmissible.^  So,  where  a  party,  convicted  of  perjury,  had 
obtained  a  rule  nisi  for  a  new  trial,  and,  pending  the  proceedings, 
had  shot  the  prosecutor,  the  Couit  of  King's  Bench,  on  cause 
being  shown  against  the  rule,  rejected  the  affidavit  of  the  dying 
declarations  of  the  latter,  as  to  the  transaction  out  of  which  the 
prosecution  for  perjury  arose."^  After  stating  these  strong  cases, 
it  seems  scarcely  necessary  to  add,  that  in  an  action  of  ejectment 
the  court  refused  to  receive  the  dying  declarations  of  a  servant  of 
the  party  last  seised,  as  to  the  relationship  of  such  party  with  the 
lessor  of  the  plaintiff;  '  and  that  in  Ireland,  on  an  indictment  for 
murder,  the  prisoner  was  not  allowed  to  avail  himself  of  the  state- 
ment of  a  stranger,  who  on  his  death- bed  confessed  that  he  had 


'  Wright?'.  Littler,  3  Burr.  12r>r>  ;  1  W.  Bl.  349,  S.  C,  per  Ld.  Mansfield  ; 
stating,  however,  as  reported  in  Blackstone,  that  no  general  rule  could  he 
drawn  from  the  admission  of  the  evidence  in  that  particular  case;  Anon., 
per  Heath,  J.,  cited  with  apparent  approhation  by  Ld.  Ellenborough  in 
Aveson  v.  Ld.  Kinnaird,  G  East,  19.5,  190,  and  in  Bp.  of  Durham  v.  Beau- 
mont, 1  Camp.  210,  and  explained  by  Baylej',  J.,  in  Doe  v.  Ridgway,  4 
B.  &  A.  55. 

2  See  Stobart  v.  Dryden,  1  M.  &  W.  G24— 627,  where  the  cases  cited  in  the 
preceding  note  were  virtually  overruled.     See  ante,  ^  568. 

3  R.  r.  Mead,  2  B.  &  C.  608;  4  D.  &  R.  120,  S.  C;  R.  r.  Hind,  29  L.  J., 
M.  C.  147;  8  Cox,  300,  S.  C;  Bell,  C.  C.  253,  S.  C;  1  East,  P.  C.  353; 
Wilson  V.  Boerem,  15  Johns.  286.  *  R.  v.  Lloyd,  4  C.  &  P.  233. 

^  R.  r.  Hutchinson,  2  B.  &  C.  608,  n.,  per  Bayley,  J.;  R.  r.  Hind.  29 
L.  J.,  M.  C.  147  ;  8  Cox,  300,  S.  C;  Bell,  C.  C.  253,  S.  C.  In  1  Ph.  Ev. 
282,  the.se  declarations  are  stated  to  have  been  held  admissible,  but  this  is  a 
mistake. 

«  R.  V.  Mead,  2  B.  &  C.  605  ;  4  D.  &  R.  120,  S.  C. 

'  Doe  V.  Ridgway,  4  B.  &  A.  53. 

(3494) 


CHAP,  XIII.]  WHY  LIMITED  TO  CASES  OF  HOMICIDE.  627 

committed  the  crime.'  Upon  one  occasion  the  judges  appear  to 
have  intrenched  somewhat  upon  this  rule  ;  for  a  prisoner  being 
indicted  for  poisoning  his  master,  and  it  appearing  that  a  maid- 
servant had  taken  some  of  the  same  poison,  and  died  in  con- 
sequence, her  dying  declarations  were  admitted  on  the  part  of 
the  prosecution,  apparently  on  the  ground  that  it  was  all  one 
transaction.^ 

§  710.^  The  reasons  for  thus  restricting  the  admission  of  this  *  ^'^^ 
species  of  evidence  may  be, — first,  the  danger  of  perjury  in  fabri- 
cating declarations,  the  truth  or  falsehood  of  which  it  is  impos- 
sible to  ascertain, — secondly,  the  danger  of  letting  in  incomplete 
statements,  which,  though  true  as  far  as  they  go,  do  not  consti- 
tute "the  lohole  truth," — and  thirdly,  the  experienced  fact,  that 
implicit  reliance  cannot  in  all  cases  be  placed  on  the  declarations 
of  a  dying  person  ;  for  his  body  may  have  survived  the  powers  of 
his  mind  ;*  or  his  recollection,  if  his  senses  are  not  impaired, 
may  not  be  perfect ;  or,  for  the  sake  of  ease,  and  to  be  rid  of  the 
importunity  of  those  around  him,  he  may  say,  or  seem  to  say, 
whatever  they  choose  to  suggest.^  As  these,  or  the  like  con- 
siderations, are  thought  in  ordinary  cases  to  counterbalance  the 
force  of  the  general  principle  above  stated,  the  exception  under 
review  is  restricted  to  cases  of  homicide,  and  is  there  recognised 
on  the  sole  ground  of  public  necessity.  For  as  it  often  happens 
that  no  third  person  was  present  as  an  eye-witness  to  a  murder,, 
and  as  the  party  injured,  who  is  the  usual  witness  in  other  cases 
of  felony,  cannot  himself  be  called,  it  follows  that  if  his  dying 
declarations  could    not    be   received,    the    murderer    might    often, 


^  R.  V.  Gray,  Ir.  Cir.  R.  73,  per  Torrens,  J. 

^  R.  V.  Baker,  2  M.  &  Rob.  53,  per  Coltman,  J.,  after  consulting  Parke,  B. 
The  point  would  have  been  reserved  for  the  opinion  of  the  judges,  but  the 
prisoner  was  acquitted.  ^  Gr.  Ev.  §  156,  in  part. 

*  Thus,  in  King  John,  Prince  Henry  is  made  to  say: — 

"Death's  siege  is  now 
Against  the  mind,  the  which  he  pricks  and  wounds 
With  many  legions  of  strange  fantasies  ; 
Which,  in  their  throng  and  press  to  that  last  hold, 
Confound  themselves." — Act  5,  sc.  7. 

*  Jackson  v.  Kniffen,  2  Johns.  31,  35,  per  Livingston,  J. 

19   LAW  OF  EVID. — v.  11.  (3495) 


628  DANGER  AND  FEAR  OF  DEATH  NECESSARY.  [PART  II. 

escape  justice.*  Still,  tliis  restriction  applies  only  to  such  declara- 
tions as  are  tendered  in  evidence  merely  because  they  were  made  in 
extremis  ;  for  where  they  constitute  part  of  the  res  gestae,  or  come 
within  the  exception  of  declarations  against  interest,  or  the  like, 
they  are  admissible  as  in  other  cases  ;  irrespective  of  the  fact,  that 
the  declarant  was  under  apprehension  of  death. 


§  717.^  The  persons  whose  declarations  are  thus  admitted,  are  ?  647 
considered  as  standing  in  the  same  situation  as  if  they  were 
sworn,  the  danger  of  impending  death  being  equivalent  to  the 
sanction  of  an  oath.  It  follows,  therefore,  that  when  the  declarant, 
if  living,  would  have  been  incompetent  to  testify  by  reason  of 
imbecility  of  mind,  or  tender  age,  his  dying  declarations  are 
inadmissible.'  On  the  other  hand,  as  the  testimony  of  an  accom- 
plice is  admissible  against  his  fellows,  the  dying  declarations  of  a 
felo-de-se  are  admissible  against  one  indicted  for  assisting  the 
deceased  in  his  self-murder.*  And  on  the  same  ground,  when  a 
husband  is  charged  with  the  murder  of  his  wife,  or  a  wife  with  the 
murder  of  her  husband,  the  dying  declarations  of  the  deceased  will 
be  received.^ 

§  718.  It  is  essential  to  the  admissibility  of  these  declarations,    ^  648 
first,  that  at  the  time  when  they  were  made  the  declarant  should 
have  been  in   actual  danger  of  death;   secondly,  that  he  should 
then  have  had  a  full  apprehension  of  his  danger;'^  and  lastly,  that 
death  should  have  ensuedJ     All  these  facts,   therefore,    must  be 

'  1  East,  P.  C.  353 ;  2  Johns.  35.  ^  Qj.   ^v.  I  157,  in  part. 

*  R.  V.  Pike,  3  C.  &  P.  598 ;  E.  v.  Drummond,  1  Lea.  338.  In  this  last 
case,  the  declaration  of  an  attainted  convict  was  rejected.  This  would  no 
longer  be  a  ground  of  objection.     6  &  7  V.,  c.  85,  |  1. 

*  R.  V.  Tinckler,  1  East,  P.  C.  354. 

5  R.  V.  Woodcock,  1  Lea.  500  ;  1  East,  P.  C,  354,  356,  S.  C;  Stoop's  case, 
Addis.  381. 

«  R.  V.  Cleary,  2  Post.  &  Fin.  850. 

'  Sussex  Peer.,  11  CI.  &  Fin.  .108,  112,  per  Ld.  Denman,  who  laid  down  the 
law  as  follows  : — "  With  regard  to  declarations  made  by  persons  in  extremis^ 
supposing  all  necessary  matters  concurred,  such  as  actual  danger,  death  follow- 
ing it,  and  a  full  apprehension,  at  the  time,  of  the  danger,  and  of  death,  such 
declarations  can  be  received  in  evidence  ;  but  aU  these  things  must  concur  to 
render  such  declarations  admissible.  Such  evidence,  however,  ought  to  be 
received  with  caution,  because  it  is  subject  to  no  cross-examination." 

(3496) 


CHAP.  XIII.]       BELIEF  OF  IMPENDING  DEATH  NECESSARY.  629 

proved  to  the  satisfaction  of  the  judge  before  the  evidence  will  be 
received.'  It'  is  not,  liowever,  necessary  that  the  declarant  should 
have  stated  that  he  was  speaking  under  a  sense  of  impending  death, 
provided  it  satisfactorily  appears,  in  any  mode,  that  the  declara- 
tions were  really  made  under  that  sanction;  as  for  instance,  if  the 
fact  can  be  reasonably  inferred  from  the  evident  danger  of  the 
declarant,''  or  from  the  opinions  of  the  medical  or  other  attendants 
stated  to  him,  or  from  his  conduct,  such  as  settling  his  affairs, 
taking  leave  of  his  relations  and  friends,  giving  directions  re- 
specting his  funeral,  receiving  extreme  unction,  or  the  like.  In 
short,  all  the  circumstances  of  the  case  may  be  resorted  to,  in 
order  to  ascei'tain  the  state  of  the  declarant's  mind.*  The  length 
of  time  which  elapsed  between  the  declaration  and  the  death  of 
the  declarant,  furnishes  no  rule  for  the  admission  or  rejection 
of  the  testimony;  though,  in  the  absence  of  better  evidence,  it 
may  serve  as  one  of  the  exponents  of  the  deceased's  belief,  that 
his  recovery  was  or  was  not  impossible.  It  is  the  impression  of 
impending  death, ^  and  not  the  rapid  succession  of  death  in  point 
of  fact,  which  renders  the  testimony  admissible.  If,  therefore,  it 
appear  that  the  deceased,  at  the  time  of  the  declaration,  had  any 
expectation  or  hope  of  recovery,  however  slight  it  may  have  been, 
and  though  death  actually  ensued  within  an  hour  afterwards,  the 
declaration    will    be  inadmissible.®      On    the  other   hand,   a  firm 

'  1  Ante,  ?  23.  ^  Gr.  Ev.  §  158,  in  part. 

*  See  R.  V.  Morgan,  14  Cox,  337,  per  Denman,  J.  In  R.  v.  Bedingfield,  id. 
341,  Cockburn,  C.  J.,  declined  to  rely  on  such  evidence.     Sed  qn. 

*  R.  V.  Woodcock,  1  Lea.  503;  R.  v.  John,  1  East,  P.  C.  357,  358;  R.  v. 
Bonner,  6  C.  &  P.  386;  R.  v.  Van  Butchell,  id.  631;  R.  v.  Mosley,  1  Moo. 
C.  C.  97;  R.  V.  Spilsbury,  7  C.  «&  P.  187,  per  Coleridge,  J.;  R.  v.  Minton, 
M'Nally,  Ev.  386;  R.  v.  Scallan,  Craw.  &  D.,  Abr.  C.  340.  See  R.  v.  Nicolas, 
6  Cox,  121;  R.  v.  Qualter,  id.  357;  R.  v.  Perkins,  9  C.  &  P.  395;  2  Moo.  C. 
C.  135,  S.  C. 

*  R.  V.  Forester,  4  Fost.  &  Fin.  857,  per  Byles,  J.,  Avhere  the  law  seems  to 
have  been  laid  down  somewhat  too  strictly;  10  Cox,  368,  S.  C. 

«  R.  V.  Welborn,  1  East,  P.  C.  385;  R.  v.  Christie,  2  Russ.  C.  &  M.  754; 
R.  r.  Jenkins,  1  Law  Rep.,  C.  C.  187;  38  L.  J.,  M.  C.  82;  11  Cox,  250, 
S.  C;  R.  V.  Mackay,  11  Cox,  148;  R.  v.  Hayward,  6  C.  &  P.  157,  160;  R.  v. 
Crockett,  4  id.  544;  R.  v.  Fagent,  7  id.  238;  R.  v.  Megson,  9  id.  418.  Where 
the  words  were,  "I  have  no  hope  of  recovering,  unless  it  be  the  will  of  God," 
R.  V.  Murphy,  Ir.  Cir.  R.  38,  per  Richards,  B. ;  and,  in  another  case,  "  I  think 
myself  in  great  danger,"  R.  v.  Errington,  2  Lew.  C.  C.  148,  they  were 
respectively  held  to  be  insufficient.  See  R.  v.  Howell,  1  C.  &  Kir.  689;  1 
Den.  1,  S.  C. 

(3497) 


630  WHAT  DYING  DECLARATIONS  ARE  ADMISSIBLE.         [PART  II. 

belief  that  death  is  impending,^ — by  which  is  meant,  not  as  was 
once  thought,"  that  it  will  almost  immediately  follow,  but  that  it 
will  happen  shortly  in  consequence  of  the  injury  stistained,^ — will 
suffice  to  render  the  statement  evidence,  though  the  sufferer  may 
subsequently  express  a  hope  of  recovery,*  or  may  chance  to  linger 
on  for  some 'days,  or  even  for  two  or  three  weeks.* 

§  719.  It  is  worthy  of  remark  that  in  Scotland  it  is  immaterial,  §  649 
except  as  regards  the  weight  of  the  evidence,  whether  or  not  the 
declaration  be  made  under  the  impression  of  impending  death; 
but  where  a  party  has  received  a  mortal  wound,  an  account  of 
the  matter  given  by  him  at  any  time  subsequent  to  the  injury 
will  be  admissible  in  the  event  of  his  death,  provided  it  were 
made  seriously  and  deliberately,  and  whilst  the  deceased  appeared 
to  be  aware  of  what  he  was  doing,  and  in  the  possession  of  his 
faculties.® 

§  720.'  The  declarations  of  the  deceased  are  admissible  07ily  as    I  650 

to  matters  to  ichich  he  ivoiild  have   been  competent  to  testify,  if 

sworn   in  the  cause.      They   must,    therefore,  in  general  narrate 

facts  only,  and  not   mere  opinions;*  and   they  must  be  confined 

to  what  is  relevant  to  the  issue.     But  it  is  not  necessary  that  the 

examination  of  the  deceased  should  have  been  conducted  after 
< — ■ 

^  E.  V.  Goddard,  15  Cox,  7,  per  Hawkins,  J.,  and  Baggallay,  L.  J. 

^  Per  Hullock,  B.,  in  R.  v  Van  Butchell,  3  C.  &  P.  629,  631.  See,  also, 
R.  V.  Forester,  4  Post.  &  Fin.  859,  per  Bjies,  J.;  10  Cox,  368,  S.  C;  E.  v. 
Osman,  15  Cox,  1,  per  Lush,  L.  J. 

»  R.  V.  Reaney,  Dear.  &  Bell,  151;  26  L.  J.,  M.  C.  43;  7  Cox,  209,  S.  C. 

*  R.  V.  Hubbard,  14  Cox,  565,  per  Hawkins,  J. 

^  In  R.  V.  Woodcock,  1  Lea.  500,  the  declarations  were  made  two  days 
before  death;  in  R.  v.  Bonner,  6  C.  &  P.  386,  three  days;  in  R.  v.  Whitwortb, 
1  Post.  &  Fin.  382,  six  days;  in  R.  v.  Tinckler,  1  East,  P.  C.  354,  ten  days; 
in  R.  V.  Reaney,  Dear.  &  Bell,  151;  26  L.  J.,  M.  C.  43;  7  Cox,  209,  S.  C; 
in  R.  V.  Mosley.  1  Moo.  C.  C.  97,  eleven  days;  and  in  R.  v.  Bernadotti,  11  Cox, 
316,  coram  Brett  &  Lush,  Js.,  nearly  three  weeks;  yet  they  were  all  received. 
In  R.  V.  Mosley,  and  in  R.  v.  Whitworth,  it  appeared  that  the  surgeon  did  not 
think  the  case  hopeless,  and  told  the  patient  so:  but  the  patient  thought 
otherwise.  See,  also,  R.  t-.  Peel,  2  Post.  &  Fin.  21;  R.  v.  Howell,  1  C.  & 
Kir.  689;  1  Den.  1,  S.  C. 

«  Alison,  Pract.  Cr.  L.  510—512,  604—607;  2  Hume,  Com.  391— 393 ;1  1 
Dickson,  Ev.  66,  67.  The  same  laAv  seems  to  have  prevailed  in  England  a 
century  ago.     See  R.  v.  Blandy,  18  How.  St.  Tr.  1137. 

'  Gr.  Ev.  I  159,  in  part.  ^  R.  v.  Sellers,  Carr.  Cr.  L. 

(3498) 


CHAP.  XIII.]      WHAT  DYING  DECLARATIONS  ARE  ADMISSIBLE.  631 

the  manner  of  interrogating  a  witness  in  the  cause,  though  any 
departure  from  this  mode  may  affect  the  credibility  of  the  declara- 
tions. Therefore,  in  general,  it  is  no  objection  to  their  admissibility, 
that  they  were  made  in  answer  to  leading  questions,'  or  obtained 
by  earnest  solicitation.'  But  where  a  statement,  ready  written, 
was  brought  by  the  father  of  the  deceased  to  a  magistrate,  who 
accordingly  went  to  the  deceased  and  interrogated  her  as  to  its 
accuracy,  paragraph  by  paragraph,  it  was  rejected  in  Ireland  by 
Mr.  Justice  Crampton,  who  observed  that,  "  in  the  state  of  languor 
in  which  dying  persons  generally  are,  their  assent  could  be  easily 
got  to  statements  which  they  never  intended  to  make,  if  they  were 
but  ingeniously  interwoven  by  an  artful  person  with  statements 
which  were  actually  true;"  and  his  lordship  added,  "the  magis- 
trate should  not  have  trusted  to  the  relation  of  a  third  person,  but 
should  have  taken  down  the  deceased's  declaration  from  her  own 
lips,  or  at  least  have  had  it  taken  down  in  his  presence."  ^  When 
the  declarations  have  been  properly  made,  the  right  to  ofler  them  in 
evidence  is  not  restricted  to  the  prosecutor,  but  they  are  equally 
admissible  in  favoui*  of  the  accused.*  ( 


§  721.^  Whatever  the  declaration  may  be,  it  must  be  complete  in  |  651 
itself;  for,  if  the  dying  man  appears  to  have  intended  to  qualify  it 
by  other  statements,  which  he  is  prevented  by  any  cause  from 
making,  it  will  not  be  received. '^  Again,  it  has  been  held  in  one 
case, — though  with  very  questionable  propriety  so  far  as  relates 
to  the  rejection  of  oral  evidence, — that  if  the  statement  were 
committed  to  tcriting  at  the  time  it  was  made,  this  writing  must 
be  produced,  or  its  n  on -production  acounted  for;  and  that 
neither  a  copy,  nor  parol  evidence  of  the  declaration,  can  be 
admitted  in  the  first  instance  to  supply  the  omission.'     But  whei'e 


1  E.  V.  Smith,  L.  &  Cave,  607;  10  Cox,  82;  34  L.  J.,  M.  C.  153,  S.  C. 

^  R.  V.  Fagent,  7  C.  &  P.  238;  11.  v.  Reason,  1  Str.  499;  16  How.  St.  Tr. 
1,  24,  et  seq.,  S.  C;  Com.  v.  Vass,  3  Leigh,  R.  786;  R.  v.  Whitworth,  1  Fost. 
&  Fin.  382.  =>  R.  v.  Fitzgerald,  Ir.  Cir.  R.  168,  169. 

*  R.  V.  Scaife,  1  M.  &  Rob.  551;  2  Lew.  C.  C.  150,  S.  C.  The  same  law  pre- 
vails in  Scotland,  2  Hume,  Com.  393. 

*  Gr.  Ev.  I  159  &  161,  in  part.  6  3  Leigh,  R.  797. 

'  R.  V.  Gay,  7  C.  &  P.  230,  per  Coleridge,  J. ;  R.  v.  Reason,  16  How.  St.  Tr. 
1,  24,  et  seq.;  1  Str.  499,  S.  C.     But  see  ante,  §  415. 

(3499) 


632  VALUE  OF  DYING  DECLARATIONS.  [PART  II. 

tliree  declarations  bad  been  made  at  different  times  on  tbe  same 
day,  one  of  wbicb  was  made  under  oath  to  a  magistrate,  and 
reduced  to  writing,  but  tbe  otber  two  were  not,  it  was  held  that 
these  last  might  be  proved  by  parol,  though  the  written  statement 
was  not  produced.'  If  the  deposition  of  the  deceased  has  been 
taken  under  any  of  the  statutes  on  that  subject,  and  is  inadmissible 
as  such,  for  want  of  compliance  with  some  of  the  legal  formalities, 
it  seems  that  it  may  still  be  treated  as  a  dying  declaration,  if  made 
in  extremis.^ 


§  722.^  Though  these  declarations,  when  deliberately  made  ?  652 
under  a  solemn  sense  of  impending  death,  and  concerning  circum- 
stances wherein  the  deceased  is  not  likely  to  be  mistaken,  are 
entitled  to  great  weight,  if  precisely  identified;  it  should  always 
be  recollected  that  the  accused  has  not  the  po^cer  of  cross-examina- 
tion,— a  power  quite  as  essential  to  the  eliciting  of  the  truth  as 
the  obligation  of  an  oath  can  be; — and  that  where  a  witness  has 
not  a  deep  sense  of  accountability  to  his  Maker,  feelings  of  anger 
or  revenge,  or,  in  the  case  of  mutual  conflict,  the  natural  desire 
of  screening  his  own  misconduct,  may  affect  the  accuracy  of  his 
statements,  and  give  a  false  colouring  to  the  whole  transaction. 
Moreover,  the  particulars  of  the  violence  to  which  the  deceased 
lias  spoken  are  likely  to  have  occurred  under  circumstances  of 
confusion  and  surprise,  calculated  to  prevent  their  being  accurately 
observed,  and  leading  both  to  mistakes  as  to  the  identity  of 
persons,  and  to  the  omission  of  facts  essentially  important  to  the 
completeness  and  truth  of  the  narrative.* 


1  R.  V.  Reason,  16  How.  St.  Tr.  1,  24,  et  seq. ;  1  Str.  499,  S.  C,  Piatt,  C.  J., 
dubit.     See  R.  v.  Scallan,  Craw.  &  D.,  Abr.  C.  340. 

2  R.  V.  Woodcock,  1  Lea.  502;  R.  v.  Callaghan,  McNally,  Ev.  385. 
^  Gr.  Ev.  ^  162,  in  great  part. 

*  Jackson  v.  Kniffen,  2  Jobns.  35,  36,  per  Livingston,  J.;  R.  v.  Ashton,  2 
Lew.  C.  C.  147,  per  Alderson,  B.  See,  also,  Mr.  Evans's  observations  on  the 
great  caution  to  be  observed  in  the  nse  of  this  kind  of  evidence,  in  2  Poth.  Obi. 
255  (293) ;  2  St.  Ev.  367,  and  1  Ph.  Ev.  292. 


(3500) 


CHAP.  XIV.]      ADMISS.  AND  CONFESS.  SUBSTITUTES  FOR  PROOF.  633 


CHAPTER  XIV. 

ADMISSIONS. 

§  723.*  Under  the  head  of  exceptions  to  the  rule  rejecting  ^  653 
hearsay  evidence,  it  has  been  usual  to  treat  of  admissions  and  con- 
fessions; considering  them  as  declarations  against  interest,  and, 
therefore,  as  probably  true.  But  in  regard  to  many  admissions, 
and  especially  those  implied  from  conduct  and  assumed  character, 
it  cannot  be  supposed  that  the  party,  at  the  time  of  the  principal 
declaration  or  act,  believed  himself  to  be  speaking  or  acting 
against  his  own  interest;  but  often  the  contrary.  Such  evidence 
seems,  therefore,  more  properly  admissible  as  a  substitute  for  the 
ordinary  and  legal  proof  ;^  either  in  virtue  of  the  direct  consent 
and  waiver  of  the  party,  as  in  the  case  of  explicit  and  solemn 
admissions,  or  on  grounds  of  public  policy  and  convenience,  as  in 
the  case  of  those  implied  from  assumed  character,  acquiescence, 
or  conduct.  In  this  light  confessions  and  admissions  are  regarded 
by  the  Roman  law,  as  stated  by  Mascardus.  Illiid  igitur  in  primis, 
ut  hinc  potissimum  exordiar,  non  est  ignorandum,  quod  esti  con- 
fessioni  inter  probationum  species  locum  in  proesentia  tribuerimus; 
cuncti  tamen  fere  Dd.  unanimes  sunt  arbitrati,  ipsam  potius  esse  ab 
onere  probandi  relevationem,  quam  proprie  probationem.^  Many 
admissions,  however,  being  made  by  third  persons,  are  receivable 
on  mixed  grounds;  partly,  as  belonging  to  the  res  gestae,  partly. 


1  Gr.  Ev.  §  169,  verbatim. 

^  As  to  when  the  admissions  of  a  party  with  respect  to  written  instruments 
may  be  substituted  for  the  ordinary  proof  of  such  instruments  by  their  pro- 
duction, see  ante,  ^^  410 — 414. 

*  1  Masc.  de  Prob.  qusest.  7,  n.  1,  10,  11;  Menoch.  de  Praes.,  lib.  1,  qufest. 
61,  n.  6;  Alciat.  de  Praes.,  pars  2,  n.  4.  The  Roman  law  distinguishes,  with 
great  clearness  and  precision,  between  confessions  extra  judicium,  and  confes- 
sions in  judicio;  treating  the  former  as  of  very  little  and  often  of  no  weight, 
unless  corroborated,  and  the  latter  as  generally,  if  not  always,  conclusive,  even 
to  the  overthrow  of   the  pra3sumptio  juris   et  de  jure;  thus  constituting  an 

(3501) 


634  ADMISSIONS  AND   CONFESSIONS — DISTINCTION.      [PART  II. 

as  made  against  the  interest  of  the  person  making  them,  and 
partly,  because  of  some  privity  with  him  against  whom  they  are 
offered  in  evidence. 


§  724.^  In  our  law,  the  term  admission  is  usually  applied  to  ciml  I  654 
transactions,  and  to  those  matters  of  fact,  in  criminal  ca^es,  which 
do  not  involve  criminal  intent;^  the  term  coyifession  being  gene- 
rally restricted  to  acknowledgments  of  guilt.  This  distinction  will 
be  better  understood  by  an  example.  Thus,  on  the  trial  of  Lord 
Melville,  who  was  charged,  amongst  other  things,  with  criminal 
misapplication  of  moneys  received  from  the  Exchequer,  the  ad- 
missions of  his  agent  and  authorised  receiver  was  held  sufficient 
proof  of  the  fact  of  such  agent  having  received  the  public  money; 
though  had  such  admission  been  tendered  in  evidence  to  establish 
the  charge  of  any  misapplication  of  the  money  by  the  noble 
defendant,  it  would  clearly  have  been  rejected.  The  law  was 
thus  stated  by  Lord  Chancellor  Erskine: — "  This  first  step  in  the 
proof "  (namely,  the  receipt  of  the  money  by  the  agent, )  "  must 
advance  by  evidence  applicable  alike  to  civil,  as  to  criminal  cases; 
for  a  fact  must  be  established  by  the  same  evidence,  whether  it 
is  to  be  followed  by  a  criminal  or  civil  consequence;  but  it  is  a 
totally  different  question,  in  the  consideration  of  criminal  as  dis- 
tinguished from  civil  justice,  how  the  noble  person  now  on  trial 
may  be  affected  by  the  fact  when  so  established.  The  receipt  by 
the  paymaster  would  in  itself  involve  him  civilly,  but  could  by  no 
possibility  convict  him  of  a  crime."  ^ 

§  724a.  As   the   rules   of    evidence,  respectively    applicable    to 


exception  to  the  conclusiveness  of  this  class  of  presumptions.  But  to  give 
a  confession  this  effect,  certain  things  are  essential,  which  Mascardus  cites 
out  of  Tancred: — 

''  Major,  sponte,  sciens,  contra  se,  ubi  jus  fit; 
Nee  natura,  favor,  lis,  jusve  repugnet,  et  hostis." 

Masc.  ub.  supr.  n.  15;  Vid.  Dig.  lib.  42,  tit.  2,  de  confessis.     Cod.  lib.  7,  tit. 
59;  Van.  Leeuw.  Comm.  book  v.  ch.  21. 
^  Gr.  Ev.  §  170,  almost  verbatim. 

2  Ld.  Melville's  trial,  29  How.  St.  Tr.  746—764. 

3  29  How.  St.  Tr.  764. 

(3502) 


CHAP.  XIV.]       RULES  OF  COURT  AS  TO  NOTICES  TO  ADMIT.  635 

admissions  and  confessions,  differ  in  some  respects,  the  two  sub- 
jects will  be  discussed  in  separate  chapters.  And  with  regard  to 
Admissions,  it  will  first  be  convenient  to  refer  to  a  practice,  which 
of  late  years  has  greatly  prevailed,  of  making  solemn  admissions 
before  a  trial  for  the  purpose  of  dispensing  with  formal  proof. 
The  law  on  this  subject, — after  several  changes,' — is  now  embodied 
in  the  Eules  of  the  Supreme  Court,  1883,  Order  XXXII. 
Eule  1  of  that  Order  provides  in  general  terms,  that  "  Any  party 
to  a  cause  or  matter  may  give  notice,  by  his  pleading,  or  otherwise 
in  writing,  that  he  admits  the  truth  of  the  whole  or  any  part  of  the 
case  of  any  other  party."' 

R.  2, — which  is  almost  a  re-enactment  of  the  old  law, — is  con- 
fined to  the  admission  of  documents,  and  with  this  view  it  provides, 
that  "  Either  party  may  call  upon  the  other  party  to  admit  any 
document,  saving  all  just  exceptions;  and  in  case  of  refusal  or 
neglect  to  admit,  after  such  notice,  the  costs  of  proving  any  such 
document  shall  be  paid  by  the  party  so  neglecting  or  refusing, 
whatever  the  result  of  the  cause  or  matter  may  be,  unless  at  the 
trial  or  hearing  the  court  or  a  judge  shall  certify  that  the  refusal 
to  admit  was  reasonable;  and  no  costs  of  proving  any  document 
shall  be  allowed  unless  such  notice  be  given,  except  where  the 
omission  to  give  the  notice  is,  in  the  opinion  of  the  taxing  officer, 
a  saving  of  expense." 

R.  3  furnishes  a  form  of  "  notice  to  admit  documents,"  in  which 


1  See  Eeg.-Gen.  2  W.  4,  reported  in  3  B.  &  Ad.  392,  393;  Reg. -Gen.,  H.  T., 
4  W.  4,  r.  20,  reported  in  4  B.  &  Ad.,  xvii.,  xviii.;  Reg.-Gen.,  H.  T.,  1853;  15 & 
16  v.,  c.  76,  U  in,  118;  16  &  17  V.,  c.  113,  §  118,  Ir.;  Rule.s  of  Sup.  Ct.  1875, 
Ord.  XXXII.,  rr.  1  4.  For  the  practice  on  the  Revenue  side  of  the  Queen's 
Bench  Division,  see  Reg.-Gen.,  24  V.,  r.  17;  6  H.  &  N.  xiii.  And  also,  in  pro- 
ceedings under  the  Public  Worship  Registration  Act,  1874,  37  &  38  V.,  c.  85, 
see  Reg.-Gen.,  22  Feb.,  1879,  r.  46,  and  Form  39,  cited,  L.  R.,  4  P.  D.  261,  284. 
So,  too,  in  the  Court  of  Probate,  see  Rules  of  1862,  for  Ct.  of  Prob.  in  conten- 
tious business,  r.  72,  and  Form  No.  20.  The  Rules  of  1865,  1869,  1875,  1877, 
and  1880,  for  the  Ct.  of  Div.  &  Mat.  Causes,  are,  ibrsome  unaccountable  reason, 
silent  on  the  subject. 

^  If  a  defendant,  in  an  action  of  .salvage,  admits  all  the  facts  pleaded  in 
the  statement  of  claim,  the  plaintiff  cannot  call  evidence  in  support  of  any 
additional  facts,  except  by  leave  of  the  court,  and  on  special  grounds.  The 
Hardwick,  L.  R.,  9  P.  D.  32;  53  L.  J.,  P.  D.  &  A.  23,  per  Sir  James  Hannen, 
S.  C. 

(3503) 


G36 


NOTICES  TO  ADMIT  DOCUMENTS. 


[part  II. 


the  draughtsman  has  certainly  not  displayed  a  striking  amount  of 
intelligence/ 

^  Form  11,  Appendix  B.,  is  as  follows  : — 

188     .   [Here  put  the  letter  and  number.'] 
In  the  High  Court  of  Justice.  Between  A.  B.,  plaintiff, 

Division.  and 

C.  D.  defendant. 
Notice  filed  188    . 

Take  notice  that  the  plaintiff  [or  defendant]  in  this  cause  proposes  to 
adduce  in  evidence  the  several  documents  hereunder  specified,  and  that  the 
same  may  be  inspected  by  the  defendant  [or  plaintiff],  his  solicitor  or  agent, 
at  on  ,  between  the  hours  of  ;  and  the  defendant 

l^or  ])laintiff]  is  hereby  required,  within  forty-eight  hours  from  the  last- 
mentioned  hour,  to  admit  that  such  of  the  said  documents  as  are  specified 
to  be  originals  were  respectively  written,  signed,  or  executed  as  they  purport 
respectively  to  have  been;  that  such  as  are  specified  as  copies  are  true 
copies;  and  such  documents  as  are  stated  to  have  been  served,  sent,  or 
delivered,  were  .so  served,  sent,  or  delivered  respectively;  saving  all  just 
exceptions  to  the  admissibility  of  all  such  documents  as  evidence  in  this 
cause. 

Dated,  &c.  (Signed) 

G.  H.,  Solicitor  {or  agent]  for 
plaintiff  [or  defendant]. 
To  E.  F.,  Solicitor  [or  agent]  for 

defendant  [or  plaintiff]. 
*  [Here  describe  the  documents,  the  manner  of  doing  which  may  be  as  Jollows : — ] 

Originals. 


Description  of  Documents. 


Deed  of  covenant  between  A.  B.  and  C.  D.  first  part, 
and  E.  F.  second  part 

Indenture  of  lease  from  A.  B.  to  C.  D 

Indenture  of  release  between  A.  B.,  C.  D.  first  part, 
&c 

Letter,  defendant  to  plaintiff 

Policy  of  insurance  on  goods  by  ship  "  Isabella,"  on 
voyage  from  Oporto  to  London 

Memorandum  of  agreement  beween  C.  D.,  captain 
of  said  ship,  and  E-  F 

Bill  of  exchange  for  100/.  at  three  months,  drawn 
by  A.  B.  on  and  accepted  by  C.  D.,  indorsed  by 
E.  F.  and  G.  11 


January  1,  1848. 
February  1,  1848. 

February  2,  1848. 
March  1,  1848. 

December  3,  1847. 

January  1,  1848. 

May  1,  1849. 


*  The  references  in  the  above  Form  to  the  year  1848,  to  leases  and  releases,. 
to  the  General  Post,  to  Attorneys,  and  to  the  Rolls  Chapel,  furnish  a  ludicrous 
example  of  the  .slovenly  mode  in  which  these  guides  for  the  use  of  the  Pro- 
fession have  been  prepared. 

(3504) 


CHAP.   XIV.] 


NOTICES  TO  ADMIT  FACTS. 


G37 


R.  4  is  one  of  an  experimental  nature,  and  it  may,  or  may  not, 
attain  its  object,  viz.,  that  of  diminishing  the  expense  at  the  trial. 
It  has  thus  been  framed: — "Any  party  may,  by  notice  in  writing,  at 
any  time  not  later  than  nine  days  before  the  day  for  which  notice  of 
trial  has  been  given,call  on  any  other  party  to  admit,for  the  purposes 
of  the  cause,  matter,  or  issue  only,  any  siiecific  fact  or  facts  men- 
tioned in  such  notice.  And  in  case  of  refusal  or  neglect  to  admit 
the  same  within  six  days  after  service  of  such  notice,  or  within  such 
further  time  as  may  be  allowed  by  the  court  or  a  judge,  the  costs  of 
proving  such  fact  or  facts  shall  be  paid  by  the  party  so  neglecting  or 
refusing,  whatever  the  result  of  the  cause,  matter,  or  issue  may  be, 
unless  at  the  trial  or  hearing  the  court  or  a  judge  certify  that  the 
refusal  to  admit  was  reasonable,  or  unless  the  court  or  a  judge  shall 
at  any  time  otherwise  order  or  direct.  Provided  that  any  admission 
made  in  pursuance  of  such  notice  is  to  be  deemed  to  be  made  only 
for  the  purposes  of  the  particular  cause,  matter,  or  issue,  and  not 
as  an  admission  to  be  used  against  the  party  on  any  other  occasion, 
or  in  favour  of  any  person  other  than  the  party  giving  the  notice: 
provided  also,  that  the  court  or  a  judge  may  at  any  time  allow  any 
party  to  amend  or  withdraw  any  admission  so  made  on  such  terms 
as  may  be  just." 

B.  5  provides,  that   "  A  notice  to   admit  facts  shall  be  in  the 


Copies. 


Original  or  Duplirate served, 

Description  of  Documents. 

Dates. 

sent,    or   delivered,     when, 
how,  and  by  whom. 

Register    of  baptism    of 

A.B.in  the  parish  of  X. 

January  1,  1848. 

Letter — plaintiff    to   de- 

fendant      

February  1,  1848      .      . 

Sent   by    General   Post, 

February  2,  1848. 
Served  March  2,  1848,  on 

Notice  to  produce  papers 

March  1, 1848  .... 

defendant'.s    attorney 
by  E.  F.,  of 

Record  of  a  judgment  of 

the    court  of   Queen's 

Bench    in    an    action, 

F.  S.  V.  F.  N.      ... 

Trinity  Term,  10th  Vict. 

Letters    Patent  of  King 

Charles  II.  in  the  Rolls 

Chapel 

January  1,  1680. 

(3505) 


638 


ADMISSIONS  OF  FACTS. 


[PAHT  II. 


Form  No.  12,  in  Appendix  B.,  and  admissions  of  facts  shall  be  in 
the  Form  No.  13  in  Appendix  B.,  with  such  variations  as  circum- 
stances may  require."  ' 

1  No.  12. 

Notice  to  admit  Facts. 
[Heading  as  in  Form  11,  ante,  p.  636.] 
Take  notice  that  the  phiintiff  [or  defendant]    in   this   cause   requires  the 
defendant  [or  plaintiff]  to  admit,   for  the  purposes  of  this  cause   only,    the 
several  facts  respectively  hereunder  specified;  and  the  defendant  [or  plaintiff] 
is  hereby  required,  -within  six  days  from  the  service  of  this  notice,  to  admit 
the  said  several  facts,   saving  all  just  exceptions  to  the  admissibility  of  such 
facts  as  evidence  in  this  cause. 
Dated,  &c. 

G.  D.,  solicitor  [or  agent]  for  the  plaintiff  [or  defendant]. 
To  E.  F.,  solicitor  [or  agent]  for  the  defendant  [or  plaintiff]. 
The  Axcts,  the  admission  of  which  is  required,  are — 

1.  That  John  Smith  died  on  the  1st  of  January,  1870. 

2.  That  he  died  intestate. 

3.  That  James  Smith  was  his  only  lawful  son. 

4.  That  Julius  Smith  died  on  the  1st  of  April,  1876. 

5.  That  Julius  Smith  never  was  married. 


No.  13. 

Admission  of  Facts,  pursuant  to  Notice. 

[Heading  as  in  Form  11,  ante,  p.  636.] 

The  defendant  [or  plaintiff]  in  this  cause,    for  the  purposes  of  this  cause 

only,  hereby  admits  the  several  facts  respectively  hereunder  specified,  subject 

to  the  qualifications  or  limitations,  if  any,  hereunder  specified,  saving  all  just 

exceptions  to  the  admissibility  of  such  facts,  or  any  of  them,  as  evidence 

in  this  cause. 

Provided  that  this  admission  is  made  for  the  purposes  of  this  action  only, 
and  is  not  an  admission  to  be  used  against  the  defendant  [or  plaintiff]  on  any 
other  occasion,  or  by  anyone  other  than  the  plaintiff  [or  defendant  or  party 
requiring  the  admission'\. 

Delivered,  &c. 

E.  F.,  solicitor  [or  agent]  for  the  defendant  [or  plaintiff]. 
To  G   H.,  solicitor  [or  agent]  for  the  plaintiff  [or  defendant]. 


Facts  admitted. 

Qualifications  or  Limitations,  if  any,  subject 
to  wliicli  tiiey  are  admitted. 

1. 

That  John  Smith  died  on  the  1st 
of  January,  1870. 

1. 

2. 

That  he  died  intestate. 

2. 

3. 

That  James    Smith   was  his  law- 

3. But  not  that  he  was  his  only  law- 

ful son. 

ful  son. 

4. 

That  Julius  Smith  died. 

4.  But  not  that  he  died  on  the  1st  of 
April,  1876. 

5. 

That    Julius    Smith     never    was 
married. 

5. 

(3506) 


CHAP.    XIV.]    ADMISSIONS  OF  DOCUMENTS  OR  FACTS,  IIOW  PROVED.    G39 

R.  6  provides,  that  "  any  party  may  at  any  stage  of  a  cause  or 
matter,  where  admissions  of  fact  have  been  made,  either  on  the 
pleadings,  or  otherwise,  apply  to  the  court  or  a  judge  for  such 
judgment  or  order  as  upon  such  admissions  he  may  be  entitled  to, 
without  waiting  for  the  determination  of  any  other  question  between 
the  parties  ;  and  the  court  or  a  judge  may  upon  such  application 
make  such  order,  or  give  such  judgment,  as  the  court  or  judge 
may  think  just." 

R.  7  provides,  with  respect  to  the  mode  of  proof,  that  "  an 
affidavit  of  the  solicitor  or  his  clerk,  of  the  due  signature  of  any  ad- 
missions made  in  pursuance  of  any  notice  to  admit  documents  or 
facts,  shall  be  sufficient  evidence  of  such  admissions,  if  evidence 
thereof  be  required  ;"  and  by  virtue  of  R.  9,  the  costs  occasioned 
by  any  notice  to  admit  unnecessary  documents,  "  shall  be  borne  by 
the  party  giving  such  notice." 


§  724b.  In  contrasting  Rules  2  and  4  as  cited  above,  it  will  be 
seen  that  while  the  latter  specifies  the  respective  times  allowable 
for  giving  notice  to  admit,  and  for  admitting,  facts,  the  former, 
which  relates  to  documents,  is  silent  on  both  those  points.  For 
this  reason,^and  indeed  for  many  more,  which  will  occur  to  an 
intelligent  lawyer, — a  reference  to  a  few  cases,  which  were  decided 
on  the  construction  of  the  former  rules,  may  still  be  of  service.  And,  «  704 
first,  it  has  been  held,  that,  though  the  notice  to  admit  documents 
must  be  given  a  reasonable  time  before  trial,  yet,  where  it  was  given 
to  the  defendant's  agent  in  town  only  four  days  before  the  commis- 
sion day  at  Newcastle, — and  he  two  days  afterwards  refused  to  admit 
the  documents  without  objecting  to  the  sufficiency  of  the  notice,  or 
requiring  further  time, — the  plaintiff  was  entitled  to  the  costs  of 
proof. ^  Secondly,  though  the  admission  be  made  "  with  a  saving 
of  all  just  exceptions,"  it  so  far  recognises  the  general  character 
and  accuracy  of  the  documents,  that  no  objection  can  subsequently 
be  taken  to  the  authenticity  of  any  part  of  them,"  or  to  their  reception 
in  evidence  on  the  ground  of  any  interlineation,   however  material. 


»  Tinn  v.  Billingsley,  2  C.  M.  &  R.  253  ;  3  Dowl.  810,  S.  C. 
^  Hawk  V.  Freuud,  1  Fost.  &  Fin.  294,  per  Byles,  J.  ' 

(3507) 


640  DECISIONS   RESPECTING   NOTICES   TO   ADMIT.  [pART   II, 

appearing  upon  them.'  If  this  were  not  so,  great  inconveniences 
would  follow;  for  as  one  main  object  of  inducing  a  party  to  admit 
under  notice,  is  to  dispense  with  the  necessity  of  formal  proof  of  the 
instrument,  it  would  obviously  open  a  door  to  fraud,  if  the  party 
admitting  were  at  liberty  afterwards  to  object  to  an  interlineation, 
which  the  attesting  witness  might  alone  be  enabled  to  explain.^ 
So,  Avhere  a  deed  was  admitted  as  "  the  counterpart  of  a  lease,"  an 
objection  taken  at  the  trial,  that  it  was  in  fact  a  lease,  and  as  such 
inadmissible  for  want  of  a  sufficient  stamp,^  was  overruled  ;  *  and 
where  a  party  admitted  an  instrument,  which  was  specified  in  the 
notice  as  bearing  date  the  10th  August,  he  was  not  allowed  to  call 
on  his  opponent  for  an  explanation,  though  on  the  production  of  the 
instrument  it  was  evident  that  the  date"  August"  had  been  written 
on  an  erasure.^ 

§  724c.  Thirdly,  a  variance  in  the  description  of  the  document,  ?  705 
if  not  of  a  nature  to  mislead,  will  not  release  the  admitting  party 
from  his  obligation;  as,  for  instance,  where  the  date  of  a  promissory 
note,  which  was  otherwise  correctly  described  in  the  notice  to 
admit,  was  misstated.®  Fourthly,  it  seems  that  a  party  will  not  be 
entitled  to  the  costs  of  proving  any  document  specified  in  the  notice, 
unless  the  witness  called  to  establish  this  proof  has,  at  least  in  his 
examination  in  chief,  been  questioned  to  no  other  fact.^  Fifthly, 
when  a  notice  is  given  to  admit  documents,  all  that  can  fairly  be 
asked  is,  that  the  handwriting  or  due  execution  of  the  papers 
specified  should  be  admitted  ;  and,  therefore,  where  a  plaintifF  in- 
cluded in  his  notice  a  demand  to  admit  the  authority  by  which  the 
documents  had  been  written,  and  afterwards,  on  the  defendant  re- 
fusing generally  to  make  the  admission  as  prayed,  proved  the 
documents  at  the  trial,  it  was  held  that  he  could  not  recover  from 
his  opponent  the  costs  of  such  proof.* 

1  Freeman  v.  Steggall,  14  Q.  B.  202. 

2  Id,  203,  per  Coleridge,  J. 

3  See  noil'  33  &  34  V.,  c.  97,  ?  93,  and  Sch.  Tit.  "  Duplicate." 

*  Doe  V.  Smith,  8  A.  &  E.  255  ;  3  N.  &  P.  335  ;  2  M.  &  Rob.  7,  S.  C. 

*  Poole  V.  Palmer,  C.  &  Marsh.  69,  per  Rolfe,  B. 

«  Field  V.  Hemming,  7  C.  &  P.  619,  per  Ld.  Abinger  ;  5  Dowl.  450,  S.  C, 
nom.  Field  v.  Flemming  ;  Bittleston  v.  Cooper,  14  M.  &  W.  399. 
^  Stracey  v.  Blake,  7  C.  &  P.  404,  per  Ld.  Abinger. 
8  Oxford,  Wore,  &  Wolverh.  Ry.  Co.  v.  Scudamore,  1  H.  &  N.  666. 

(3508) 


CHAP.  XIV.]         DECISIONS  RESPECTING  NOTICES  TO  ADMIT.  G41 

§  724d.  Sixthly,  it  is  needless  to  show  that  the  aclmitting  party  g  70.") 
has  actually  examined  the  documents  mentioned  in  the  notice,  if  he 
has  had  an  opportunity  of  doing  so;^  and  it  seems  to  be  unneces- 
sary to  identify  the  document  produced  at  the  trial  with  the  one 
inspected,  provided  that  it  corresponds  with  the  description  con- 
tained in  the  notice."  On  two  occasions,  however,  the  necessity  for 
such  evidence  was  urged  by  counsel,  if  not  acknowledged  by  the 
court  ;^  and  prudence  may  generally  dictate  the  propriety  of  being 
prepared  with  such  proof,  or,  at  least,  of  having  the  documents  that 
are  to  be  produced  signed  or  marked  by  the  party  making  the 
admission.  Seventhly,  though  the  notice  to  admit  contain  no  saving 
of  all  just  exceptions,  the  party  admitting  may  still  rely  on  any 
valid  objection  to  the  admissibility  of  a  document  specified  in  it; 
and,  therefore,  where  a  plaintiff  admitted  that  a  paper  was  a  copy  of 
a  letter  from  himself  to  a  defendant,  who  had  suffered  judgment  by 
default,  this  did  not  entitle  the  other  defendant  to  put  in  the  copy, 
without  first  accounting  for  the  non-production  of  the  original,  or 
tracing  it  to  the  plaintiff's  possession,  and  proving  the  notice  to 
produce.  The  judge's  order  in  that  case,  which  served  the  same 
purpose  as  the  present  notice  to  admit,  merely  secured  the  accuracy 
of  the  secondary  evidence,  but  did  not  give  it  the  effect  of  primary 
proof.* 


§  724e.  Lastly,  Rule  2  extends  to  every  document  which  a  party  §  706 
purposes  to  adduce  in  evidence,  whether  or  not  it  be  in  his  custody 
or  control,^  and  whether  or  not  it  be  put  in  issue  by  the  pleadings.® 
Neither  will  the  case  be  varied  though  the  opposite  party  may  have 
already,  irrespective  of  the  notice,  refused  in  positive  terms  to 
make  any  admission  on  the   subject.'     A  party  may  even,   as  it 


^  Doe  V.  Smith,  8  A.  &  E.  264,  265,  per  Patteson  and  Coleridge,  Js. 

*  Id.  per  Coleridge,  J.,  who  observed,  that  "  to  require  such  evidence  would 
be  multiplying  proofs,  so  as  to  defeat  the  rule  of  court." 

3  Clay  V.  Thackrah,  9  C.  &  P.  53,  coram  Ld.  Denman;  Doe  d.  Tindal  v.  Roe, 
5  Dowl.  420,  per  Ld.  Abinger. 

*  Sharpe  v.  Lamb,  11  A.  &  E.  805,  807;  3  P.  &  D.  454,  S.  C.  See  Goldie 
V.  Shuttleworth,  1  Camp.  70;  Rochfort  v.  Sedley,  12  Ir.  Law  R.,  N.  S., 
App.  iv.  ^  Rutter  v.  Chapman,  8  M.  &  W.  388. 

«  Spencer  v.  Barough,  9  M.  &  W.  425.  '  Id, 

(3509) 


642  CAUTION  REQUISITE  IN  ADMITTING  UNDER  NOTICE.       [PAET  II. 

would  seem,  be  served  with  notice  to  admit  a  foreign  judgment,  or 
other  documents  in  a  foreign  court,  provided  that  his  opponent  will 
give  him  time  to  inspect  them  abroad,  and  pay  his  expenses 
incurred  in  so  doing.'  Still,  the  rules  do  not  apply  where  ancient 
records  of  a  public  nature  require,  not  proof,  but  translation  and 
explanation,  or  where  affidavits  which  have  been  filed  must  be 
produced  by  an  officer;  and,  consequently,  a  plaintiff  was  held 
entitled  to  the  costs,  both  of  a  witness  who  was  called  to  explain 
and  translate  the  records,  and  of  an  officer  of  the  Court  of  Chancery 
who  produced  the  affidavits,  though  the  defendant  had  not  been 
called  upon  to  admit  any  one  of  these  documents.^ 


§  724f.  In  consenting  to  admit  for  the  purposes  of  a  trial,  care  §  707 
must  be  taken,  lest,  by  the  words  used  in  the  notice  to  admit,  the 
party  admitting  should  be  entrapped  into  making  a  larger  admis- 
sion than  he  intended.  The  defendant  fell  into  this  en-or  in  the 
case  of  Chaplin  v.  Levy.^  There  the  holder  of  a  bill  of  exchange 
sued  the  acceptor,  and  the  defendant's  solicitor  wrote  a  letter  ad- 
mitting "  that  the  acceptance  to  the  bill  on  which  the  action  is 
brought  is  in  the  defendant's  handwriting."  A  plea  denying  the 
acceptance  was  afterwards  pleaded,  but  the  court  held  that,  not- 
withstanding this  plea,  the  admission  contained  in  the  letter  estab- 
lished a  prima  facie  case  on  behalf  of  the  plaintiff  without  the 
production  of  the  bill  itself  at  the  trial.  In  the  case  of  Wilkes  v. 
Hopkins,  a  similar  mistake  was  made.*  That  was  an  action  against 
three  persons  on  a  bill  of  exchange  alleged  to  have  been  accepted 
by  them  under  the  style  of  "  The  Newbridge  Coal  Company."  The 
acceptance  was  traversed  by  two  of  the  defendants,  while  the  third 
one.  Bishop,  who  had  actually  signed  the  acceptance  for  the 
company,  suffered  judgment  by  default.  At  the  trial,  the  two 
defendants  who  had  pleaded,  denied  that  Bishop  had  any  authority 
to  accept  for  them;  but  as  the  notice  to  admit  stated  the  bill  to 
have  been  "  accepted  by  Bishop  for  the  defendants  as  the  Newbridge 


1  Smitli  V.  Bird,  3  Dowl.  641. 

2  Bastard  v.  Smith,  10  A.  &  E.  213.  '  9  Ex.  K.  531. 
1  1  Com  B.  737.     See,  also.  Hunt  v.  Wise,  1  Fost.  &  Fin.  445. 

(3510) 


CHAP.  XIV.]  NOTICE  TO  ADMIT  IN  COUNTY  COURTS.  643 

Coal  Company,"  the  court  held,  that  an  admission  under  this 
notice,  not  only  acknowledged  the  signature  of  Bishop,  but  precluded 
the  defendants  from  denying  that  he  had  authority  to  bind  them  by 
his  acceptance.  This  last  decision  is  certainly  one  strictissirai 
juris;  and  probably  it  would  not  be  upheld  at  the  present  day.^ 

§  724g.  In  the  County  Courts  the  rule  which  governs  notices  to 
admit  is  as  follows: — "  AVhero  a  party  desires  to  give  in  evidence 
any  document,  he  may,  not  less  than  five  clear  days  before  the 
trial,  give  notice'^  to  any  other  party  in  the  action  who  is  competent 
to  make  admissions,  requiring  him  to  inspect  and  admit  such 
document;  and  if  such  other  party  shall  not  within  three  days 
after  receiving  such  notice  make  such  admission,  any  expense  of 
proving  the  same  at  the  trial  shall  be  paid  by  him,  whatever  be  the 
result  of  the  action,  unless  the  court  shall  otherwise  order;  and  no 
costs  of  proving  any  document  shall  be  allowed  unless  such  notice 
shall  be  given,  except  in  cases  where,  in  the  opinion  of  the 
registrar,  the  omission  to  give  such  notice  has  been  a  saving  of 
expense."  ^ 

§  725.  Having  now  explained  the  practice  relating  to  notices  to  I  655 
admit,  it  will  be  convenient  to  discuss  the  general  law  of  admis- 
sions; and  here,  the  first  rule  important  to  be  borne  in  mind,  is, 
that  the  whole  statement  containing  the  admission  must  be  taken 
together;  for  though  some  part  of  it  may  be  favom-able  to  the 
party,  and  the  object  is  only  to  ascertain  what  he  has  conceded 
against  himself,  and  what  may  therefore  be  presumed  to  be  true; 
yet,  unless  the  whole  is  received,  the  true  meaning  of  the  party, 
which  is  evidence  against  him,  cannot  be  ascertained.*  But 
though  the  whole  of  what  he  said  at  the  same  time,  and  relating 
to  the  same  subject,  must  be  given  in  evidence,  it  does  not  follow 
that  all  the  parts  of  the    statement  should   be   regarded  as  equally 


1  See  Pilgrim  r.  Southampton  &  Dorchester  Ry.  Co.,  18  L.  J.,  C.  P.  330. 

2  C.  C.  R.,  187G,  Form   288.     This  Form  is   the   same   as   Form    U  of  the 
Rules  of  the  Supreme  Court,  cited  ante,  p.  636. 

^  C.  C.  R.,  1875,  Orel.  XIII.,  r.  9. 

*  Thomson    v.    Austen,  2    D.    &    R.    361,    per    Abbott,   C.    J. ;  Fletcher  v. 
Froggatt,  2  C.  &  P.  56G,  per  id. ;  Cobbctt  v.  Grey,  4  Ex.  R.  729. 
20   L.VW  OF  EVID.— v.  II.  (3511) 


644  -WHOLE  ADMISSION  MUST  BE  TAKEN  TOGETHER.        [PAET  II. 

deserving  of  credit;  but  the  jury  must  consider,  under  the  circum- 
stances, how  much  of  the  entire  statement  they  deem  worthy  of 
belief,  including  as  well  the  facts  asserted  by  the  party  in  his  own 
favour,  as  those  making  against  him.' 


§  726.  This  rule,  simple  as  it  appears,  is  not  without  difficulty  'i  650 
in  its  practical  application;  and  it  will  therefore  be  convenient 
briefly  to  refer  to  a  few  of  the  leading  decisions  on  the  subject. 
And,  first,  the  rule  applies  equally  to  UTitten,  as  to  verbal, admis- 
sions; and,  consequently,  where  a  defendant  has  rendered  a  debtor 
and  creditor  account  to  the  plaintiff,  which  the  latter  produces  in 
proof  of  his  demand,  it  will  be  equally  admissible  in  evidence  of 
the  defendant's  setoff;^  though  the  plaintiff  will  be  at  liberty, 
while  relying  on  the  creditor  side  of  the  account,  to  impeach  items 
which  appear  oa  the  debtor  side.'^  Where,  however,  to  an  action 
on  an  attorney's  bill  of  costs,  the  defendant  pleaded  a  set-off,  and 
put  in  an  account  furnished  to  him  by  the  plaintiff,  in  which  the 
plaintiff  credited  himself  for  the  amount  of  his  bill,  and  debited 
himself  for  the  amount  of  goods  sold,  the  court  held  that  the 
defendant  could  not  exclude  from  the  consideration  of  the  jury  so 
much  of  the  account  as  related  to  the  bill  of  costs,  on  the  ground 
that  no  signed  bill  had  been  delivered;  because  the  non-delivery  of 
a  signed  bill  does  not  bar  the  debt,  but  merely,  if  insisted  on, 
prevents  its  recovery  by  action.^ 

§  727.   When,  under  the  old  system  of  pleading  and  practice,  the    §  657 
admission  was  contained  in  an   affidavit,  a  written  examination,^  a 


'  Bermon  v.  Woodbridge,  2  Doug.  788,  per  Ld.  IMansfield;  Smith  r.  Blandy, 
Ry.  &  M.  259,  per  Best,  C.  J. ;  Cray  v.  Halls,  cited  id.  258,  per  Abbott,  C.  J. 
See,  also,  Whitwell  v.  Wyer,  11  Mass.  6,  10  ;  Garey  v.  Nicholson,  24  Wend. 
.350;  Kelsey  r.  Bush,  2  Hill,  S.  Car.  R.  440. 

''  Randle  v.  Blackburn.  5  Taunt.  245. 

^  Rose  V.  Savory,  2  Bing.  N.  C  145;  2  Scott,  199,  S.  C.  See  Moorhouse 
V.  Newton,  3  De  Gex  &  Sm.  .307. 

*  Harrison  v.  Turner,  10  Q.  B.  482. 

^  In  Prince  i:  Samo,  7  A.  &  E.  630,  Coleridge,  J.,  asked  whether  the 
question  had  ever  been  decided  as  to  depositions?  To  which  the  counsel 
replied  that  no  express  decision  had  been  found. 

(.3512) 


CHAP.  XIV.]  WHOLE  ADMISSION  MUST  BE  TAKEN  TOGETHER.  G45 

signed  pleading,^  an  answer,"  or  plea,^  in  Chancery,  or  other  docu- 
ment complete  in  itself,  the  whole  document  was  required  to  be  read, 
though  the  jury  were  not  bound  to  give  equal  credit  to  every  part  of 
it,  and  they  frequently  lent  an  academic  faith  to  such  portions  as 
made  in  favour  of  the  declarant.*  So  stringent  was  this  rule,  that 
where,  on  exceptions  taken,  a  second  answer  to  a  bill  in  equity  had 
been  sent  in,  the  defendant  was  allowed  to  insist  upon  having  that 
also  read,  in  order  to  explain  what  he  had  sworn  in  his  first  answer.^ 
It  has  also  been  held  that  a  party,  against  whom  an  answer  in 
Chanceiy  was  produced,  might  have  the  whole  bill  read  as  part  of 
his  adversary's  case,  on  the  ground  that  this  was  like  the  ordinary 
case  of  a  conversation,  where  the  answers  of  a  party  could  not  be 
given  in  evidence  against  him  without  also  proving  the  questions 
which  drew  forth  the  answers.**  The  jury,  however,  might  in  such 
case  be  warned,  that  the  statements  in  the  bill  were  not  admissions 
of  the  facts  contained  therein  ;  it  being  notorious  that  allegations, 
not  consistent  with  fact,  were  frequently  introduced  into  a  bill,  for 
the  sole  purpose  of  eliciting  truth  from  the  opposite  party.' 

§  728.  In    Goss    i\    Quinton,^  where    the    plaintiffs,    who    were    ^  658 
assignees  of  a  bankrupt,  gave  in  evidence  an  examination  of  the 
defendant  before  the  commissioners,  as  proof  that  he  had  taken 
certain    property,    the    court    held    that    they  thereby    made    his 

'  Marianski  r.  Cairns,  1  IVIacq.  Sc.  Cas.  H.  of  L.  212.  In  the  Supreme 
Court  the  rule  respecting  the  signing  of  pleadings,  is  as  follows: — "Signa- 
ture of  counsel  shall  not  be  necessary  ;  but  when  pleadings  have  been 
settled  by  counsel  or  a  special  pleader,  they  shall  be  signed  by  him  ;  and  if 
not  so  settled,  they  shall  be  signed  by  the  solicitor,  or  by  the  party  if  he  sues 
or  defends  in  person."     Sup.  Ct.  Rules.  1883,  Ord.  XIX.,  R.  4. 

2  See  Cons.  Ord.  Ch.  1860,  Ord.  xv.,  rr.  5,  6. 

^  Pleas  in  Chancery,  Avhere  the  matter  of  the  plea  did  not  appear  upon 
record,  must  have  been  upon  oath,  and  be  signed  by  the  parties  pleading. 
Cons.  Ord.  Ch.  1860,  Ord.  xiv.,  rr.  2,  3. 

*  Bermon  r.  Woodbridge,  2  Doug.  788,  per  Ld.  Mansfield ;  Blount  v. 
Burrow,  4  Br.  C.  C.  75,  per  Ld.  Hardwicke ;  Baildon  r.  Walton.  1  Ex.  R.  617; 
Percival  v.  Caney,  4  De  Gex  &  Sm.  623,  624,  per  Knight-Bruce,  V.-C. 

»  R.  V.  Carr,  1  Sid.  418  ;  B.  N.  P.  237;  Ld.  Bath  v.  Bathersea,  5  Mod.  10  ; 
Lynch  v.  Gierke,  3  Salk.  154. 

«  Pennell  v.  Meyer,  2  M.  &  Rob.  98,  per  Tindal,  C.  J.;  8  C.  &  P.  470,  S.  C. 

■Id. 

«  3  M.  &  G.  825. 

(3513) 


64:6  WHOLE  ADMISSION  MUST  BE  TAKEN  TOGETHER.  [PART  II. 

cross-examination  evidence  in  the  cause  :  and  as,  in  this  cross- 
examination,  the  defendant  had  staled  that  he  had  purchased  the 
property  under  a  written  agreement,  a  copy  of  which  was  entered 
as  part  of  his  answer,  this  statement  was  considered  as  some 
evidence  on  his  behalf  of  the  agreement  and  its  contents  ;  and 
that  too,  though  the  absence  of  the  document  was  not  accounted 
for,  nor  had  notice  been  given  to  the  plaintiifs  to  produce  it.  So, 
where  a  magistrate  was  sued  in  trespass  for  assault  and  false  im- 
prisonment, the  warrant  of  commitment  put  in  evidence  by  the 
plaintiff  was  held  to  be  admissible  on  behalf  of  the  defendant,  as 
proof  of  the  informalion  recited  in  it  ;'  and  in  an  action  against 
a  sheriff,  where  an  undersheriff's  letter  was  produced  by  the 
plaintiff  to  affect  the  defendant,  it  was  held  to  be  some  evidence 
also  of  certain  facts  stated  therein,  which  tender  to  excuse  the 
sheriff.' 


§  729.  The  Case  of  Bessey  v.  "Windham^  purports  to  have  been  §  659 
decided  on  the  same  principle.  There,  in  order  to  fix  a  sheriff 
in  an  action  of  trespass,  the  plaintiff  put  in  the  warrant  under 
which  the  seizure  was  made  ;  and  as  this  recited  the  writ  of 
fi.  fa  ,  the  Court  of  Queen's  Bench  held  that  it  was  some  evidence 
of  the  writ,  and,  consequently,  that  it  tended  to  protect  the  sheriff, 
as  showing  that  the  seizure  was  made  by  the  authority  of  the  law. 
The  Court  of  Common  Pleas,  however,  on  a  more  recent  occasion,* 
has  questioned  this  decision,  on  the  ground  that  the  warrant  was 
offered  in  evidence,  not  as  proof  of  the  facts  recited  in  it,  but 
merely  to  show  that  the  sheriff  had  ordered  the  goods  in  question 
to  be  seized.  And  it  seems  to  be  now  tolerably  clear  from  several 
authorities,  that  where  a  sheriff"  or  bailiff  seeks  to  justify  a  seizure 
as  against  any  party  but  the  execution-debtor,  he  must  produce 
both  the  writ  of  execution   and  the  judgment,  and  he  cannot  be 


1  Ilaylock  v.   Sparke,  22  L.   J.,  M.  C.   67  ;  1  E.  &  B.  471,  S.   C.     This  case 
seems  to  overrule  Stephens  v.  Clark,  2  M.  &  Rob.  435,  per  Cresswell,  J. 

'  Haynes  v.   Hayton,  6  L.  J.,   K.   B.    (O.  S.),   231,   recognised  in  Bessey  u- 
Windham,  6  Q.  B.  172. 

3  6  Q.  B.  1G6.     See  Ogden  v.  Hesketh,  2  C.  &  Kir.  772. 

*  White  V.  Morris,  11  Com.  B.  1015.     See,  also,  Bowes  v.  Fo.ster,  27  L.  J,, 
Ex.  2G3,  per  Watson,  B. 

(3514) 


CHAP.  XIV.]    RULE  AS  TO  READING  OLD  ANSWERS  IN  CHANCERY.         G4T 

relieved  from   offering   such   proof,  by  any  recital  in  the   warrant 
which  his  opponent  may  put  in  evidence.' 


§  730.  The  rule  requiring  the  whole  statement  containing  the  ?  6G0 
admission  to  be  taken  together,  has  long  pevailed  to  a  considerable 
extent  in  equity  ;  and  therefore,  where  a  defendant  had  been 
examined  on  two  days  before  commissioners  of  the  Court  of 
Bankruptcy,  and  the  plaintifP  read  the  examination  taken  on  the 
first  day,  he  was  compelled  to  read  that  also  which  was  taken  on 
the  second  day;^  and  where  a  plaintiff  in  equity  read  that  part  of 
the  defendant's  account-book,  which  charged  the  latter,  the  de- 
fendant was  allowed  to  read  the  discharging  part  as  evidence  for 
himself.^  With  respect,  however,  to  the  old  ansicers  and  examina- 
tions in  Chancery, —which  have  now  been  superseded  by  statements 
of  defence  and  answers  to  interrogatories, — the  equity  rule  was  far 
less  comprehensive  than  that  which  was  recognised  at  common 
law;  and  although,  if  a  party  in  equity  admitted  in  his  examina- 
tion or  answer,  that  he  had  received  a  sum,  and  then  added  in  the 
same  sentence  that  he  had  immediately  paid  it  away, —  or  if  he 
stated  in  a  still  more  general  form,  that  a  person  gave  him  lOOZ. 
as  a  present, — the  charge  and  the  discharge  would  be  so  blended 
together,  that  the  one  could  not  be  admissible  without  the  other  ;  * 
still,  if  he  once  admitted  the  receipt  of  money  as  an  independent 
fact,  he  could  not  refer  to  other  parts  of  his  examination  or  answer, 
much  less  to  affidavits  sworn  by  him,  or  to  schedules  attached  to 
his  answer,  for  the  purpose  of  showing  that  he  had  liquidated  the 
amount  so  admitted  to  have  been  received,  by  separate  and  inde- 
pendent payments.^     So,  if  a  plaintiff  read  a  passage  in  the  answer 


1  White  I'.  Morris,  11  Com.  B.  1015;  Glare  v.  Wentworth,  6  Q.  B.  173,  n. 
per  Parke,  B. ;  Martin  v.  Podger,  5  Burr.  2631 ;  Lake  v.  Billers,  1  Ld.  Kay. 
733.  2  Smith  r.  Biggs,  5  Sim.  391,  per  Sliadwell,  V.-C. 

^  Carter  v.  Ld.  Coleraine,  cited  in  2  Ball  &  B.  384;  Blount  v.  Burrow,  4  Br. 
C.  C.  75,  per  Ld.  Hardvvicke. 

*  Ridgeway  r.  Darwin,  7  Ves.  404,  per  Ld.  Eldon;  Thompson  r.  Lambe,  id. 
588,  per  id.;  Robinson  v.  Scotney,  19  id.  584,  per  Sir  W.  Grant,  M.  R. ; 
B.  N.  P.  237.  See,  also,  Awdley  v.  Awdley,  2  Vern.  194 ;  Hampton  v. 
Spencer,  id.  2"<8;  Freeman  v.  Tatham,  5  Hare,  329. 

^  Cases  cited  in  last  note. 

(3515) 


648  RULE  AS  TO  ANSWERS  TO  INTERROGATORIES.         [PART II. 

as  evidence  of  a  particular  fact,  the  defendant  could  not  read  other 
parts,  even  though  grammatically  connected  with  such  passage  by 
conjunctive  particles,  unless  they  were  really  explanatory  of  its 
meaning; '  and  if,  in  order  to  understand  the  sense  of  the  passage 
on  which  the  plaintiff  relied,  it  was  necessary  to  read  on  the  part 
of  the  defendant  other  portions  of  the  answer,  still  these  portions 
would  be  evidence  only  so  far  as  they  were  explanatory;  and  any 
new  facts  introduced  therein,  though  so  immediately  connected  with 
the  parts  admitted  as  to  be  incapable  of  subtraction,  would  be  con- 
sidered as  not  read."  This  rule  seems  to  have  been  adopted  in  conse- 
quence of  the  subtle  contrivances  of  equity  draftsmen,  whose  skill 
formerly  consisted  in  so  grammatically  blending  important  points 
of  the  defendant's  case  with  admissions  that  could  not  be  with- 
held, as  to  render  it  necessary  that  both  should  be  read  in  con- 
junction, and  thus  to  prove  their  client's  case  by  means  of  his 
own  unsupported  statements/  The  oats  and  tares  were  reaped 
together. 


§  731.  In  accordance  with  the  practice  in  equity  as  explained  in 
the  preceding  section,  the  Rules  of  the  Supreme  Court,  1883,  have 
provided  by  Order  XXXI.,  Rule  24,  that  "  any  party  may,  at  the 
trial  of  a  cause,  matter,  or  issue,  use  in  evidence  any  one  or  more 
of  the  answers  or  any  part  of  an  answer  of  the  opposite  party  to 
interrogatories  without  putting  in  the  others  or  the  whole  of  such 
answer:  Provided  always,  that  in  such  case  the  judge  may  look 
at  the  whole  of  the  answers,  and  if  he  shall  be  of  opinion  that  any 
others  of  them  are  so  connected  with  those  put  in  that  the  last 
mentioned  answers  ought  not  to  be  used  without  them,  he  may 
direct  them  to  be  put  in." 

§  732.  Though  the  whole  of  a  document  may,  as  a  general  rule,    §  661 
be  read  by  the  one  party,  when  the  other  has  already  put  in  evi- 
dence a  partial  extract,^  this  rule  will  not  warrant  the  reading  of 


^  DaA'is  V.  Spurling,  1  Ru.ss.  &  Mj\.  68,  per  Leach,  M.  R. 
2  Bartlett  v.  Gillard,  3  Ru.ss.  1.56,  per  Ld.  Eldon.  ^  Gresl.  Ev.  13. 

*  R.  V.  Queen's  Cy.  Js.,  re  Feehan,  10  L.  R.  Jr.  294. 

(3516) 


CHAP.  XIV.  J  DISTINCT  ENTRIES — DISTINCT  MATT.  IN  CONVERSATION.  649 

distinct  entries  in  an  acconnt-book/  or  distinct  paragraphs  in  a 
newspaper,"  unconnected  with  the  particular  entry  or  paragraph 
relied  on  by  the  opponent;  nor  will  it  render  admissible  bundles 
of  proceedings  in  bankruptcy,  entries  in  corporation-books,  or  a 
series  of  copies  of  letters  inserted  in  a  letter-book,  merely  because 
the  adversary  has  read  therefrom  one  or  more  papers,  or  entries,  or 
letters.^  If,  indeed,  the  extracts  put  in  expressly  refer  to  other 
documents,  these  may  be  read  also;  but  the  mere  fact,  that  the 
remaining  portions  of  the  papers  or  books  may  throw  light  on  the 
parts  selected  by  the  opposite  party,  will  not  be  sufficient  to  warrant 
their  admission;  for  such  party  is  not  bound  to  know  whether  they 
will  or  not;  and  moreover,  the  light  may  be  a  false  one.* 


§  733,  The  same  rule  prevails  in  the  case  of  a  conversation,  in  ^  G62 
which  several  distinct  matters  have  been  discussed;  and  although 
it  was  at  one  time  held,  on  high  authority,  that  if  a  witness  were 
questioned  as  to  a  statement  made  by  an  adverse  party,  such  party 
might  lay  before  the  court  the  whole  that  was  said  by  him  in  the 
same  conversation,  even  matter  not  properly  connected  with  the 
statement  deposed  to,  provided  only  that  it  related  to  the  subject- 
matter  of  the  suit:^  yet,  a  sense  of  the  extreme  injustice  that  might 
result  from  allowing  such  a  course  of  proceeding,  has  induced  the 
courts,  in  later  times,  to  adopt  a  stricter  rule;  and  if  a  part  of  a 
conversation  is  now  relied  on  as  an  admission,  the  adverse  party 
can  give  in  evidence  only  so  much  of  the  same  conversation  as 
may  explain  or  qualify  the  matter  already  before  the  court. "^  The 
case  in  which  this  decision  was  pronounced  admirably  illustrates 
its  propriety  and  justice.  It  was  an  action  against  the  defendant 
for  having  maliciously  arrested  the  plaintiff  for  debt,  the  plaintiff 
contending  that  the  advance  had  been  a  gift  and  not  a  loan.     A 


'  Catt  V.  Howard,  3  Stark.  R.  6,  per  Abbott,   C.  J. ;  Reeve  v.  Wliitmore,  2 
Drew.  &  Sm.  446. 

'^  Darby  v.  Ouseley,  1  H.  &  N.  1. 

3  Sturge  V.  Buchanan,  10  A.  &  E.  598;  2  M.  &  Rob.  90,  S.  C. 
♦  Id.  600,  605,  per  Ld.  Denman. 

5  The  Queen's  case,  2  B.  &  B.,  297,  298,  per  A})bott,  C.  J. 
«  Prince,  v.  Samo,  7  A.  &  E.  627,  634,  635. 

(3517) 


C50  LETTERS  WHEN  ADMISSIBLE  WITHOUT  ANSWERS.       [pART  11. 

witness  for  the  plaintiff  acknowledged  on  cross-examination,  that 
he  had  heard  the  plaintiff  admit  on  oath,  that  he  had  repeatedly 
been  insolvent,  and  had  been  remanded  by  the  Insolvent  Debtors' 
Court;  whereupon  he  was  asked  in  re-examination  whether  the 
plaintiff  had  not,  on  the  same  occasion,  expressly  stated  that  the 
money  was  given  to  him,  and  not  lent.  The  court,  in  holding  that 
the  answer  to  this  question  was  not  evidence,  observed,  that  if  it 
were,  "the  jury  would  be  bound  to  consider  it,  and  might  give  full 
effect  to  it,  and  thus  award  large  damages  for  an  injury,  of  which  no 
particle  of  proof  could  be  found  but  the  plaintiff"'s  own  assertion;  " 
and  they  added,  that  "  the  reason  of  the  thing  wQuld  rather  go  to 
exclude  the  statements  of  a  party  making  declarations  which  cannot 
be  disinterested." ' 


§  734.  With  regard  to  letters,  it  has  been  held  that  a  party  may  g  663 
put  in  such  as  were  written  by  his  opponent,  without  producing 
those  to  which  they  were  answers,  or  calling  for  their  production; 
because,  in  such  a  case,  the  letters  to  which  those  put  in  were 
answers  are  in  the  adversary's  hands,  and  he  may  produce  them,  if 
he  thinks  them  necessary  to  explain  the  transaction.'  But  if  a 
plaintiff  puts  in  a  letter  by  the  defendant,  on  the  back  of  which  is 
someting  written  by  himself,  the  defendant  is  entitled  to  have 
the  whole  read;^  and  where  a  defendant  laid  before  the  court 
several  letters  between  himself  and  the  plaintiff,  he  was  allowed  to 
read  a  reply  of  his  own  to  the  last  letter  of  the  plaintiff,  it  being 
considered  as  a  part  of  an  entire  corespondence,* 

§  735.  Questions  not  unfrequently  arise  as  to  the  admissibility    §  664 
of   letters,  account  books,  &c.,  which  are  tendered  as  admissions, 
in  cases  where  their  existence  or  contents  have  been  discovered  by 
means  of  a  compulsory  examination  or  answer  of  the  party  either  in 
previous  bankruptcy  proceedings,  or  in  some   other  legal  inquiry; 


1  Prince  V.  Sanio,  7  A.  &  E.  627,  634,  635. 

^  Ld.  Bairymore   r.   Taylor,  1    Esp.   326,   per   Ld.   Kenyon;  De   Medina  v. 
Owen,  3  C.  &  Kir.  72,  per  Parke,  B. 

3  Dagleish  v.  Dndd,  5  C.  &.  P.  238,  per  Taunton,  J. 
*  Eoe  t'.  Day,  7  C.  &  P.  705,  per  Park,  J. 

(3518) 


CHAP.  XIV.]    DOCUMENTS  RliFEUKED  TO  IN  PREVIOUS  EXAMONS.         051 

and  it  is  often  contended  in  such  cases  that  the  documents  cannot 
be  read,  without  first  producing  the  examination  or  answer.  On  one 
or  two  occasions  at  Nisi  Priu?,  this  objection  has  prevailed; '  but 
the  judges  in  Banc  have  since  decided  that, — whatever  the  correct 
doctrine  may  be  with  respect  to  documents  referred  to  in  an  exami- 
nation or  answer,  and  actually  annexed  thereto, — no  rule  of  law  will, 
in  other  cases,  compel  a  party  to  treat  the  document  on  which  he 
relies  as  part  of  a  previous  examination  or  answer."  "It  was  sur- 
mised," said  Lord  Denman, — while  pronouncing  the  judgment  of 
the  court  in  Sturge  i\  Buchanan, — "that  an  unfair  advantage  had 
been  taken  of  tlie  defendant  in  obtaining  a  knowledge  of  these  letters 
through  a  suit  in  Chancery,  and  then  producing  them  without  the 
answers,  which  may  have  greatly  qualified  and  altered  their  eifect. 
But  I  cannot  think  that  a  judge  at  Nisi  Prius  has  anything  to  do 
with  these  considerations:  he  is  to  inquire  only  whether  due  notice 
has  been  given;  whether  the  documents  have  been  proved  to  exist; 
whether  copies  are  well  proved."^ 

§  736.  Lord  Tenterden  has  even  expressed  a  doubt  whether,  in  ?  (JGr 
the  event  of  a  document  being  annexed  to  an  old  answer  in  Chancery, 
the  answer  need  be  read,  if  it  have  no  connexion  with  the  cause  in 
which  the  document  is  produced.*  If,  however,  the  letter  in  ques- 
tion be  not  written  by  the  party  against  whom  it  is  offered,  though 
contained  in  the  schedule  of  his  answer,  and  if  it  be  merely  used 
against  him,  as  raising  an  inference  from  possession  that  he  knew 
of  its  contents,  and  had  acted  upon  it,  common  fairness  seems  to 
dictate, — in  conformity  with  a  decision  of  Chief  Juf^tice  Tindal,'"^ — 
that  the  letter  should  not  be  read  without  the  answer;  for  the  answer 
of  the  party  might  contain  such  an  explanation  of  the  circumstances 
under  which  the  letter  came  into  his  possession,  as  also  such  a  con- 
tradiction of  any  passages  in  it  which  seemed  to  bear  against  his 


^  Yates  V.  Carnsew,  3  C.  &   P.  99,  per  Ld.  Tenterden;  Holland  v.  Reeves, 
7  C.  &  P.  36,  per  Alderson,  B. 

•^  Long  V.  Champion,  2  B.  &  Ad.  284;  Sturge  v.  Buchanan,  10  A.  &  E.  605. 

*  10  A.  &  E.  605. 

*  Long  V.  Champion,  2  B.  &  Ad.  286. 
5  Hewitt  v.-  Piggott,  5  C.  «&  P.  75,  77. 

(3519) 


G52      WHETHER  admissions  of  hearsay  are  evidence,    [part  ii. 

rights,  as  utterly  to  neutralise  its  effect.  If  a  party,  while  making 
a  verbal  admission,  refers  to  a  written  paper,  without  which  the 
admission  is  incomplete,  the  paper  should  be  produced,  before  the 
statement  can  be  used  as  evidence  against  him.' 


§  737.^  Where  the  admission,  whether  oral  orin  writing,  contains  ?  666 
matters  stated  as  mere  hearsay,  it  may  be  questionable  whether 
such  matters  can  be  received  in  evidence  If  tendered  against  the 
party  making  the  statement,  they  are  clearly  entitled  to  very  little 
weight,  and  unless  coupled  with  a  further  admission,  that  he  be- 
lieves them  to  be  true,  they  would  seem,  like  hearsay  declarations 
against  interest,^  to  be  inadmissible.  But  does  the  same  rule  hold, 
when  they  are  oflered  in  favour  of  the  party  making  the  admission, 
as  tending  to  explain  the  statement  which  tells  against  him?  Mr. 
Justice  Chambre  on  one  occasion  thought  that  it  did,  contending 
that  where  a  party  had  read  a  part  of  the  answer  which  his  opponent 
had  pleaded  to  a  bill  filed  for  discovery,  "  he  did  not  thereby  admit 
as  evidence  all  the  facts  which  happened  to  have  been  stated  therein 
by  way  of  hearsay  only."  *  Notwithstandiog  this  auihority,  it  may 
perhaps  be  urged  with  success,  that,  since  the  answer  in  that  case 
was  offered  as  the  admission  or  the  party  against  whom  it  was  read, 
the  whole  should  have  been  laid  before  the  jury,  for  the  purpose  of 
showing  under  what  impressions  the  admission  was  made,  though 
some  part  of  it  were  stated  only  upon  hearsay  and  belief. 

§  738.   The   rule    requiring  the  whole    admission  to    be   taken    ?.  667 
together  is  so  important,  that  the  judge  will  do  well  to  explain  dis- 
tinctly to  the  jury  its  bearing  and  extent,  whenever  any  portion   of 
the   statement  is  favourable  to  the  party   against  whom  it  is  read; 
but  his  neglecting  to  do  so  in  a  case  where  it  is  clear  that  the  jury, 


'  Jacob?'.  Ivindsay,  1  East,  460;  Falconer  v.    Hanson,   1    Camp.    171;  1  Ph. 
Ev.  341. 

^  Gr.  Ev.  ^  202,  in  part. 

2  Ld.  Trimblestown  v.  Kemmis,  9  CI.  &  Fin.  780,  784—786;  ante,  §  685. 

*  Roe  V.  Ferrars,  2  B.  &  P.  518. 

(3520) 


CHAP.  XIV.  ]  VERBAL  ADMISSIONS  NOT  PUT  IN  ISSUE.  653 

in  fact,  took  the  whole  into  their  consideration,  will   not  amount  to 
such  a  misdirection  as  to  warrant  a  new  trial.' 


§  739.  A  second  rule  respecting  admissions  is,  that  they  are  re-  ?  668 
ceivable  in  evidence  though  they  relate  to  the  contents  of  a  itritten 
instrument,  even  when  such  contents  are  directly  in  is&ue  ;"  but 
as  this  rule  has  already  been  discussed,  it  is  needless  to  do  more 
in  this  place  than  thus  shortly  to  refer  to  it  ^  The  Courts  recognise 
a  third  rule,  in  rejecting,  or,  at  least,  in  placing  no  reliance  upon, 
any  verbal  admissions  or  declarations  of  the  parties,  ichich  are  not 
put  directly  in  isstie  by  the  j^leadings,  and  which,  consequently,  have 
not  been  open  to  explanation  or  disproof.*  This  doctrine  rests  upon 
the  ground,  that  the  reception  of  such  evidence  would  facilitate  the 
production  of  false  testimony;^  and  although  it  does  not  strictly 
extend  to  written  admissions,  yet  the  fact  of  their  not  being  put  in 
issue  by  the  pleadings  will  naturally  detract  from  their  weight,  as 
the  party  against  whom  they  are  oifered  in  evidence  will,  in  such 
case,  have  had  no  opportunity  of  explaining  them.*^ 

§  740.'  With  respect  to  the  person,   ivhose  admissions  may  be    I  669 
received,  the  general  doctrine  is,  that  the  declarations  of  a  party  to 
the  record,  or  of  one  identified  in  interest  ivitli  him,  are,  as  against 
such   party,  receivable  in    evidence;^  but  if  they  proceed  from  a 
stranger,  who  is  still  living,  they  are  almost  uniformly  rejected;' 

»  Beckham  v.  Osborne,  6  M.  &  Gr.  771. 

2  Slatterie  v.  Pooley,  6  M.  &  W.  664. 

*  Ante,  II  410 — 415.  See,  also,  ante,  ?  413,  as  to  the  admissibility  of  a 
confessio  juris. 

*  Austin  V.  Chambers,  6  CI.  &  Fin.  1,  38,  39;  Attwood  v.  Small,  id.  234; 
Copland  v.  Toulmin,  7  id.  350,  373,  375. 

5  6  CI.  &  Fin.  39,  per  Ld.  Cottenham. 

6  McMahon  v.  Burchell,  2  Phil.  127,  132,  133;  1  Coop.  R.  temp.  Ld. 
Cottenham,  475,  S.  C,  and  cases  cited  in  n.;  Crosbie  r.  Thompson,  11  Ir.  Eq. 
K.  404,  per  Brady,  C. ;  Swift  c.  M'Tiernan,  id.  602,  per  id.;  Malcolm  v.  Scott,  3 
Hare.  39,  63;  and  see  Margareson  r.  Saxton,  1  Y.  &  C,  E.x.  R.  529;  Fitzgerald 
V.  O'Flaherty,  2  Moll.  394,  n.;  and  Steuart  v.  Gladstone,  47  L.  J.,  Ch.  423, 
per  Fry,  J.;  L.  R.,  10  Ch.  D.  626,  644,  S.  C. 

^  Gr.  Ev.  I  171,  in  part. 

«  Spargo  V.  Brown,  9  B.  &  C.  938.  per  Bayley,  J. 

3  Barongh  r.  White,  4  B.  &  C.  328,  per  Littledale,  J.  As  to  when  they  are 
admissible,  see  post,  H  759 — 765. 

(3521) 


054  ADMISSIONS  BY  NOMINAL  PLAINTIFF  REJECTKD.       [PART  11. 

and,  though  he  be  dead,  they  cannot  in  general  be  admitted, 
unless  upon  some  of  the  tpecial  grounds  already  considered.'  In 
holding  that  the  admissions  of  parties  to  the  record  are  receivable 
in  evidence,  it  matters  not  whether  such  admissions  were  made 
before  or  after  the  party  had  arrived  at  full  age;  and,  there- 
fore, if  an  action  be  brought  against  an  adiilt  for  necessaries  supplied 
to  him  during  his  minority,  admissions  made,  and  letters  written, 
by  him  while  under  age,  may  be  proved  on  behalf  of  the  plaintifif.^ 

§  741.  Contrary  to  the  practice  which  formerly  prevailed  at 
common  law,  the  courts  now  recognise  a  wide  distinction  between 
nominal  and  real  parties;  and,  therefore,  if  the  consignee  of  goods 
uses  the  name  of  the  consignor  in  proceeding  against  a  shipper, 
or  if  the  assignee  of  a  bond  sues  the  obligor  in  the  name  of  the 
original  obligee,  or  if  the  cestui  que  trust  brings  an  action  in 
the  name  of  his  trustee.  Courts  of  J»]isi  Prius,  recognising  the  prin- 
ciples of  equity,  will  reject  the  admission  of  the  nominal  plaintiff  as 
evidence  for  the  defendant.^  Thus,  although  a  receipt  in  full  may 
have  been  given  by  the  nominal  plaintiff  to  the  defendant,  the 
parties  really  interested  may  show  to  the  jury  that  the  money  has  in 
fact  never  been  paid  :*  and  if  a  release  from  a  nominal  plaintiff  were 
pleaded  in  bar,  a  prior  assignment  of  the  cause  of  action,  with 
notice  thereof  to  the  defendant,  and  an  averment  that  the  suit  was 
prosecuted  by  the  assignee  for  his  own  benefit,  would  be  a  good 
answer.  Nor  would  the  nominal  plaintiff  be  permitted,  in  any 
manner,  injuriously  to  affect  the  rights  of  his  assignee  in  an  action." 

§  742.  Again,  the  declaration  of  a  prochein  amy  or  guardian  will    ?  67.5 
not  be  receivable  in  evidence,  because  these  persons,  though  their 


'  Ante,  ?  607. 

2  O'Neill  V.  Kead,  7  Ir.  Law  R.  434.     See  37  &  38  V.,  c.  62. 

*  See  Payne  v.  Rogers,  1  Doug.  407;  Legh  v.  Legh,  1  B.  &  P.  447;  Innell  v. 
Newman,  4  B.  &  A.  419;  Hickey  v.  Burt,  7  Taunt.  48;  Mounstcphen  v.  Brooke, 
4  Chit.  R.  390;  Manning  v.  Cox,  7  Moore,  617;  Barker  ??.  Richardson,  1  Y.  & 
J.  362;  Johnson  v.  Holdsworth,  4  Dowl.  63. 

*  See  Wallace  v.  Kelsall,  7  M.  &  W.  273,  274,  per  Parke,  B.,  explaining  the 
decisions  in  Skaife  v.  Jackson,  3  B.  «&  C.  421,  and  Farrar  v.  Hutchinson,  9  A.  & 
E.  641;  1  P.  &D.  437,  S.  C. 

^  See  Welch  v.  Mandeville,  1  Wlieat.  233;  Mandeville  v.  Welch,  5  Wheat. 
277,  283. 

(3522) 


CHAP.  XIV.  J        AD:MISSrON  BY  A  PARTNER  OR  CO-OBLIGOR.  655 

names  appear  on  the  record,  are  not  in  fact  parties  to  the  action, 
but  are  considered  as  ofificers  of  the  court  specially  appointed  by 
the  judges  to  look  after  the  interests  of  the  infant.'  A  solemn 
admission,  however,  made  by  a  guardian  or  prochein  amy  in  good 
faith  in  a  pending  suit,  for  the  purpose  of  that  trial  only,  is 
governed  by  other  considerations,  and  will  be  equally  admissible 
with  like  admissions  made  by  the  solicitor  in  the  cause." 

§  743,  When  several  persons  are  jointly  interested  in  the  subject-  ?  (^74 
matter  of  the  suit,  the  general  rale  is,  that  the  admissions  of  any 
one  of  these  persons  are  receivable  against  himself  and  fellows, 
whether  they  be  all  jointly  suing  or  sued,  or  whether  an  action 
be  brought  in  favour  of  or  against  one  or  more  of  them  separately; 
provided  the  admission  relate  to  the  subject-matter  in  dispute, 
and  be  made  by  the  declarant  in  his  character  of  a  person  jointly 
interested  with  the  party  against  whom  the  evidence  is  tendered.^ 
Thus,  the  representation  or  misrepresentation  of  any  fact  made 
by  one  partner,  with  respect  to  some  partnership  transaction,  will 
bind  the  firm;*  and  if  partners  bring  an  action  as  on  a  joint 
contract,  an  admission  by  one  of  them  that  the  subject-matter  of 
the  contract  was  his  separate  property,  will  render  the  plaintiffs 
liable  to  a  nonsuit,^  unless  the  case  be  such  as  to  warrant  an  amend- 
ment at  the  trial  under  Order  XVI.  R.  11,  of  the  Siipreme  Court 
Rules,  1883.'^  So,  where  it  appeared  on  the  record,  that  an  agree- 
ment sued  on  was  made  by  the  plaintiff  on  behalf  of  himself  and  the 
other  proprietors  of  a  theatre,  statements  made  by  one  of  such  pro- 
prietors were  admitted  on  the  part  of  the  defendant.'      And  where 


1  Eccleston  v.  Speke,  alias  Petty,  3  Mod.  258;  Cowling  v.  Ely,  2  Stark.  R. 
366,  per  Abbott,  J. ;  Webb  v.  Smith,  Ry.  &  M.  106,  per  Littledale,  J. ;  Morgan 
V.  Thome,  7  M.  &  W.  408,  per  Parke,  B. ;  Sinclair  v.  Sinclair,  13  M.  &  W. 
640,  646;  Eccles  v.  Harrison,  6  Ec.  &  Mar.  Cas.  204.  These  cases  overrnle 
James  r.  Hatfield,  1  Str.  548.  See  Doe  v.  Roberts,  16  M.  &  W.  778,  cited 
ante,  ^  605. 

'^  See  post,  §  772. 

3  WhitcombiJ.  Whiting,  2  Doug.  652;  1  Smith,  L.  C.  555,  S.  C;  Wood  v. 
Braddick,  1  Taunt.  104, 

*  Rapp  V.  Latham,  2  B.  &  A.  795;  Thwaites  v.  Richardson,  Pea.  R.  16; 
Nicholls  v.  Dowding,  1  Stark.  R.  81,  per  Ld.  EUenborough. 

5  Lucas  V.  De  la  Cour,  1  M.  &  Sel.  249.  «  Cited  ante,  g  223. 

'  Kemble  v.  Farren,  3  C.  &  P.  623,  per  Tindal,  C.  J. 

(3523) 


656  LORD  TENTERDEN'S  act.  [pakt  II. 

the  obligee  of  a  bond  filed  a  bill  against  two  joint  and  several 
obligors,  alleging  that  the  bond  had  been  delivered  up  to  one  of 
them  by  mistake,  and  pra}  ing  that  he,  the  obligee,  might  recover 
the  amount  due  on  it,  an  admission  by  the  party  to  whom  the  bond 
was  given  up,  that  it  had  been  delivered  to  her  by  mistake,  was  held 
to  be  evidence  against  the  co  obligor,  though  the  joint  answer  of 
the  defendants  had  traversed  the  allegation  as  to  mistake,  and, 
simply  admitting  the  delivery  of  the  bond,  had  stated  that  the  party 
to  whom  it  was  given  up  had  destroyed  it' 

§  744.  This  doctrine,  however,  has  been  much  restricted  by  the  §  G75 
Legislature,  and  is  now  rendered  wholly  inapplicable  to  cases 
where  joint,  or  joint  and  several,  debts  have  been  barred  by  the 
Statute  of  Limitations.  The  first  blow  aimed  at  the  rule  was 
struck  by  Lord  Tenterden's  Act,"  which, — after  enacting  that  "  in 
actions  of  debt,  or  upon  the  case  grounded  upon  any  simple  con- 
tract, no  acknowledgment  or  promise  by  words  only  shall  be 
deemed  sufficient  evidence  of  a  new  or  continuing  contract,  whereby 
to  take  any  case  out  of  the  operation  of  the  enactments"  contained 
in  the  old  Statute  of  Limitations,^  or  to  deprive  any  party  of  the 
benefit  thereof,  unless  such  acknowledgment  or  promise  shall  be 
made  or  contained  by  or  in  some  writing,  to  be  signed  by  the  party 
chargeable  thereby,'''' — goes  on  to  provide,  "that  where  there  shall 
be  two  or  more  joint-contractors,  or  executors  or  administrators 
of  any  contractor,  no  such  joint-contractor,  executor,  or  adminis- 
trator, shall  lose  the  benefit  of  the  said  enactments  or  either  of 
them,  so  as  to  be  chargeable  in  respect  or  by  reason  only  of  any 
written  acknowledgment  or  promise  made  and  signed  by  any 
other  or  others  of  them:*  Provided  alicays,  that  nothing  herein 
contained  si  tall  alter,  or  take  away,  or  lessen  the  effect  of,  any  pay- 
ment of  any  xmncipal  or  interest  made  by  any  pterson  ivhatsoecer  : 
provided  also,  that  in  actions  to  be  commenced  against  two  or  more 
such  joint-contractors,  or   executors,  or  administrators,  if  it  shall 


'  Crosses.  Bedingfield,  12  Sim.  .35. 

^  9  G.  4,  c.  14,  'i  1.  See  ante,  ?  600.  Similar  restrictions  prevail  in 
Ireland;  see  16  &  17  V.,  c.  113,  ^  24;  and  in  Massachusetts;  see  Kev.  Stat. 
c.  120,  I  14.  3  21  J.  1,  c.  16.  *  See  ante,  U  600,  601. 

(3524) 


CHAP.  XIV.]    :mp:rcantili-:  law  amendment  act,  1S5G.  657 

appear  at  the  trial,  or  otherwise,  that  the  plaintiff,  thongh  barred 
by"  the  said  Act  of  Jac.  ],'  "or  this  Act,  as  to  one  or  more 
of  sxich  joint  contractors,  or  executors,  or  administrators,  shall 
nevertheless  be  entitled  against  any  other  or  others  of  the 
defendants,  by  virtue  of  a  new  acknowledgment  or  promise  or 
otherwise,  judgment  may  be  given  and  costs  allowed  for  the 
plaintiff  as  to  such  defendant  or  defendants  against  whom  he  shall 
recover,  and  for  the  other  defendant  or  defendants  against  the 
plaintiff^ 


§  745.  This  enactment  was  open  to  two  objections  ;  for,  in  the  §  67() 
first  place,  it  required  that  the  written  acknowledgment  should 
be  personally  sigaed  by  the  party  chargeable  ;  and  next,  it  left 
untouched  the  law  which  allowed  part  payment  by  one  of  several 
co-debtors  to  operate  as  a  bar  of  the  statute  with  respect  to  the 
others.  These  defects  caused  much  litigation,  and  not  less  in- 
justice, till  at  length,  after  the  lapse  of  a  quarter  of  a  century,  a 
remedy  was  applied  to  them  by  the  Mercantile  Law  Amendment 
Act,  1856.^  §  13  enacts,  with  reference  to  the  first  defect,  that 
"  an  acknowledgment  or  promise  made  or  contained  by  or  in  a 
writing  signed  by  anagent  of  the  party  chargeable  thereby,  duly 
authorised  to  make  such  acknowledgment  or  promise,  shall  have 
the  same  effect  as  if  such  writing  had  been  signed  by  such  party 
himself."  *  The  second  defect  was  cured  by  §  14  of  the  same 
Act,  which  provides,  that  "  when  there  shall  be  two  or  more  co- 
contractors  or  co-debtors,  whether  bound  or  liable  jointly  only,  or 
jointly  and  severally,  or  executors  or  administrators  of  any  con- 
tractor, no   such    CO  contractor    or  co-debtor,  executor  or  adminis- 


'  21J.  1,  c.  16. 

'^  ^  4  of  9  G.  4,  c.  14,  enacts,  "that  the  said  Act  of  James,  anrl  that  Act, 
shall  apply  to  the  case  of  any  debt  on  simple  contract  alleged  by  way  of  set- 
off on  the  part  of  any  defendant." 

^  19  &  20  v.,  c.  97. 

*  This  section  applies  to  ?  24  of  16  &  17  V.,  c.  113,  Ir.  as  well  as  to  O 
of  Ld.  Tenterden's  Act.  As  to  the  law  in  India,  see  the  Indian  Act  IX.  of 
1871,  s.  20,  and  Dinomoyi  Debi  v.  Roy  Liichmissut  Singh,  L.  R.,  7  Ind. 
App.  8. 

(3525)  I 


658  REAL    TROPERTY    EI.MITATION    ACTS.  [PART   II. 

trator  shall  lose  the  benefit  of  the"  Statutes  of  Limitations,'  "  so 
as  io  be  chargeable  in  respect  or  by  reason  only  of  payment'  of 
any  principal,  interest,  or  other  money,  by  any  other  or  others  of 
such  CO  contractors  or  co  debtors,  executors  or  administrators." 


§  740.  The  enactment  last  cited  came  under  the  consideration  ?  67* 
of  a  court  of  equity  in  the  case  of  Thompson  v.  Waitham.^ 
There,  two  partners  had  given  a  promissory  note  in  the  name  of 
the  firm.  One  cf  the  partners  afterwards  died,  leaving  his  co- 
partner his  executor  ;  and  this  man  continued  to  pay  interest  on 
the  note  for  some  years,  when  he  became  bankrupt.  The  holder 
of  the  note  then  claimed  payment  out  of  the  assets  of  the  de- 
ceased partner's  estate  ;  but  as  more  than  six  yeans  had  elapsed 
since  the  date  of  the  death,  the  Statute  of  Limitations  was  set 
up  as  a  bar  to  the  claim.  Vice-Chancellor  Kindersley  recognised 
the  validity  of  this  defence,  holding  that  the  payments  in  the  case 
before  him  must  be  presumed  to  have  been  made  by  the  bankrupt 
in  his  character  of  surviving  partner,  and  not  as  executor  of  his 
deceased  partner.  In  the  case,  too,  of  Jackson  v.  Woolley,*  the 
Court  of  Queen's  Bench  has  ruled,  that,  on  the  proper  construc- 
tion of  the  enactment  in  question,  payment  by  one  co-debtor,  with 
the  knowledge  and  mere  consent  of  the  other,  does  not  deprive  that 
other  of  the  benefit  of  the  Statute  of  Limitations. 


§  747.  "The  Real  Property  Limitation  Act,  1874,"'  which, 
although  passed  in  that  year,  did  not  come  into  operation  till  the 
1st  of  January,  1879,  ®  contains,    in    §    7 '  a    provision  respecting 


'  21  J.  1,  c.  Ifi,  M;  3  &  4,  W.  4,  c.  42,  ?  3  ;  16  &  17  Y.,  c.  113, 
s.  20,  Ir. 

^  See  Cockrill  v.  Sparkes,  32  L.  J.,  Ex.  118  ;  1  H.  &  C.  699,  S.  C. 
^  26  L.  J.,  Ch.  134 ;  3  Drew.  628,  S.  C. 

*  27  L.  J.,  Q.  B.  181  ;  8  E.  &  B.  778,  S.  C. 

*  37  &  38  v.,  c.  57. 
**  'i  12. 

"  This  enactment, — which  has  been  substituted  for  |  28  of  3  &  4  W.  4, 
c.  27,  and  Avhich  reduces  the  period  of  tivcnly  years  therein  named  to  a  period 
of /(ceZre  years,  making  no  other  alteration  in  the  law, — is  as  follows: — 
"When  a  mortgagee  shall  have    obtained   the   possession  or   receipt    of  the 

(3526) 


CHAP.  XIV.J  BANKRUPTCY  OF  ONE  PARTNER — RELEASE  BY  OTHER.     659 

acknowledgments  of  the  mortgagor's  title  given  by  one  of  several 
mortgagees  in  possession,  which  is  the  same  in  jirinciple  as  the 
enactments  just  cited  from  Lord  Tenterden's  Act. 

§  748.  Where  a  member  of  a  partnership  has  been  adjudged    ?  678a 
banki'upt,  and  an  action  has  been  brought,  under  the  authority  of 
the   Court  of  Bankruptcy,  in  the  joint  names  of  the  trustee  and  of 
the  bankrupt's  partner,  such  partner  has  no  power  to  release  the 
debt  or  demand  to  which  the  action  relates,  but  any  attempted 

profits  of  any  land,  or  the  receipt  of  any  rent,  comprised  in  his  mortgage,  the 
mortgagor,  or  any  person  claiming  through  him,  shall  not  bring  any  action  or 
suit  to  redeem  the  mortgage  but  within  twelve  years  next  after  the  time  at 
which  the  mortgagee  obtained  such  i>ossession  or  receipt,  unless  in  the  mean- 
time an  acknowledgment  in  writing  of  the  title  of  the  mortgagor,  or  of  his 
right  of  redemption,  shall  have  been  given  to  the  mortgagor,  or  some  person 
claiming  his  estate,  or  to  the  agent  of  such  mortgagor  or  person,  signed  by 
the  mortgagee  or  the  person  claiming  through  him;  and,  in  such  case,  no  such  - 
action  or  suit  shall  be  brought  but  within  twelve  years  next  after  the  time  at 
which  such  acknowledgment,  or  the  last  of  such  acknowledgments,  if  more 
than  one,  was  given;  and  when  there  shall  be  more  than  one  mortgagor,  or 
more  than  one  person  claiming  through  the  mortgagor  or  mortgagors,  such 
acknowledgment,  if  given  to  any  of  such  mortgagors  or  persons,  or  his  or 
their  agent,  shall  be  as  effectual  as  if  tlie  same  had  been  given  to  all  such 
mortgagors  or  persons ;  but  where  there  shall  be  more  than  one  mortgagee,  or 
more  than  one  person  claiming  the  estate  or  interest  of  the  mortgagee  or 
mortgagees,  such  acknowledgment,  signed  by  one  or  more  of  such  mortgagees  or 
persons,  shall  he  effectual  only  as  against  the  party  or  parties  signing  as  afore- 
said, and  the  person  or  persons  claiming  any  part  of  the  mortgage  money  or 
land  or  rent  ^jy,  from,  or  under,  him  or  them,  or  any  person  or  persons  entitled 
to  any  estate  or  estates,  interest  or  interests,  to  take  effect  after,  or  in 
defeasance  of,  his  or  their  estate  or  estates,  interest  or  interests  ;  and  shall  not 
operate  to  give  to  the  mortgagor  or  mortgagors  a  right  to  redeem  the  mort- 
gage, as  against  the  person  or  persons  entitled  to  any  other  imdivided  or  divided 
part  of  the  money  or  land  or  rent ;  and  where  such  of  the  mortgagees  or 
persons  aforesaid,  as  shall  have  given  such  acknowledgment,  shall  be 
entitled  to  a  divided  part  of  the  land  or  rent  comprised  in  the  mortgage,  or 
some  estate  or  interest  therein,  and  not  to  any  ascertained  part  of  the 
mortgaged  money,  the  mortgagor  or  mortgagors  shall  be  entitled  to  redeem 
the  same  divided  part  of  the  land  or  rent,  on  payment,  with  interest,  of  the  part 
of  the  mortgage  money  which  shall  bear  the  same  proportion  to  the  whole  of 
the  mortgage  money,  as  the  value  of  such  divided  part  of  the  land  or  rent 
shall  bear  to  the  value  of  the  whole  of  the  land  or  rent  comprised  in  the 
mortgage."  ^  28  of  3  &  4,  W.  4,  c.  27,  has  been  repealed  by  ?  9  of  37  &  38 
v.,  c.  57.  See  Richardson  v.  Younge,  10  Law  Rep.,  Eq.  275,  per  Malins,  V.-C; 
39  L.  J.,  Ch.  475,  S.  C. ;  40  L.  J.,  Ch.  338,  S.  C,  by  Lds.  Js. ;  and  6  Law  Rep., 
Ch.  Ap.  478. 

21  LAW  OF  EVID. — V.  II.  (3527) 


GCO  JOIXT  INTEREST COMMUNITY  OF  INTEREST.  [PAHT  II. 

release  made  by  him,  is,  by  the  Bankruptcy  Act  of   1883,' — as  was 
the  law  by  the  Act  of  1809,^ — rendered  void.^ 


§  749.  If  an  admission  has  been  made  by  one  of  several  parties 
in  fraud  of  the  others  jointly  interested  with  him,  and  in  collusion 
with  the  opponent,  then,  on  proof  of  this  fact  by  the  innocent 
parties,"  such  admission  will,  on  principles  of  equity,  be  rejected  by 
the  court.* 

§  750.  In  order  to  render  the  admission  of  one  person  receivable 
in  evidence  against  another,  it  must  relate  to  some  matter  in  which 
either  both  were  jointly  interested,  or  one  was  derivatively  interested 
through  the  other;  and  a  mere  community  of  interest  will  not  be 
sufficient.  Thus,  where  two  persons  were  in  partnership,  and  an 
action  was  brought  against  them  as  part-owners  of  a  vessel,  an  ad- 
mission made  by  the  one,  as  to  a  matter  which  was  not  a  subject  of 
co-partnership,  but  only  of  co-part-ownership,  was  held  inadmissible 
against  the  other.*  So,  where  two  executors  were  sued  on  a  covenant 
by  a  testator  for  quiet  enjoyment,  and  the  question  sowewhat  sin- 
gularly raised  by  the  facts  and  the  pleadings  was,  whether  the 
defendants,  who  had  themselves  evicted  the  covenantee,  had  done 
80  under  a  lawful  title,  it  was  held  that  the  plaintiff,  in  order  to  es- 
tablish this  fact,  could  not  put  in  evidence  a  declaration  by  one  of 
the  defendants,  made  after  entry,  to  the  effect  that  both  of  them 
had  a  lawful  title,  through  the  testator,  under  a  deed  prior  to  that 
on  which  the  action  was  founded.^  The  court  considered  that  this 
admission  was  not  made  by  the  party  in  his  character  as  executor, 
nor  did  it  relate  to  any  matter  touching  the  testator's  estate;  but 
it  simply  referred  to  something  of  which  the  two  defendants  had 

M6  &  47  v.,  c.  52,   I  113. 

*  32  &  33  v.,  c.  71,   I  105. 

•''But  iu  order  to  protect  the  interest  of  the  partner,  he  miist  have  "notice 
of  the  application  for  authority  to  commence  the  action,"  and  if  he  claims  no 
benefit  therefrom,  "  he  shall  be  indemnified  against  costs." 

^  See  Rawstorne  D.  Gandell,  15  M.  &  W.  304;  Phillips  v.  Clagett,  11 
M.  &  W.   84;  ante,  §  741. 

*  Jaggers  v.  Binnings,  1  Stark.  R.  64,  per  Ld.  Ellenborough.  See  Brodie  v. 
Howard,  17  Com.  B.  109. 

«  Fox  V.  Waters,  12  A.  &  E.  43.  See  Stanton  v.  Percival,  5  H.  of  L.  Caa. 
257. 

(3528) 


CHAP.  XIV.]        ADMISSIONS  BY  ONE  OF  SEVERAL  TRUSTEES,  ETC,       G61 

taken  advantage  in  their  individual  capacities.  It  may  even  be 
doubted  whether  an  express  promise  made  by  one  executor  in  his 
representative  character  will  bind  the  remaining  executors  in  their 
representative  characters  ;^  and  it  has  been  held  that  the  admission 
of  the  receipt  of  money  by  one  of  several  trustees,  who  were  joint 
defendants,  but  were  not  personally  liable,  could  not  be  received  to 
charsfe  the  others.^ 


§  751.'  So,  where  a  joint  contract  is  severed  by  the  death  of  one  ^  681 
of  the  contractors,  nothing  that  is  subsequently  done  or  said  by  the 
survivor  can  bind  the  personal  representative  of  the  deceased,*  nor 
can  the  acts  or  admissions  of  the  executor  bind  the  survivor.^ 
Neither  will  the  admissions  of  one  tenant  in  common  be  receivable 
against  his  co-tenant,  though  both  are  parties  on  the  same  side  of 
the  suit  f  and  in  America,  it  has  been  decided,  that  no  such  privity 
exists  among  the  members  of  a  board  of  public  officers,'  or  among 
several  indorsers  of  a  promissory  note,^  or  between  executors  and 
heirs  of  devisees,**  as  to  make  the  admission  of  one  binding  on  all. 
These  cases  almost  dispense  with  the  necessity  of  adding,  that  in 
an  action  for  negligence,  or  trespass,  or  in  any  other  action  for 
tort,  the  admission  of  one  defendant  will  not  be  evidence  against 
the  others  ;'"  and  it  is  abundantly  clear  that  the  same  rule  prevails 


'  Tullock  V.  Dunn,  Ry.  &  M.  416,  per  Abbott,  C.  J. ;  cited  with  approba- 
tion by  Parke,  B.,  in  Scholey  v.  Walton,  12  M.  &  W.  514,  who  there  ques- 
tioned the  correctness  of  the  contrary  oijinion,  which  the  Q.  B.  appeared  to 
have  entertained  in  Atkins  r.  Tredgold,  2  B.  &  C.  23  ;  3  D.  &  R.  2U0,  S.  C. ; 
and  in  M'Culloch  r.  Dawes,  9  D.  &  R.  40. 

2  Davies  r.  Ridge,  3  Esp.  101,  102,  per  Ld.  Eldon. 

=*  Gr.  Ev.  §  17G,  in  part. 

*  Atkins  V.  Tredgold,  2  B.  &  C.  23  ;  3  D.  &  R.  200,  S.  C;  Fordham  v. 
Wallis,  10  Hare,  217  ;  Slaymaker  v.  Gundacker's  Ex.,  10  Serg.  &  R.  75. 

5  Slater  v.  Lawson,  1  B.  &  Ad.  396  ;  Hathaway  v.  Haskell,  9  Pick.  24. 
«  Dan  V.  Brown,  4  Cowen,  483,  492. 
'  Lockwood  V.  Smith,  5  Day,  309. 

*  Slaymaker  v.  Gundacker's  Ex.,  10  Serg.  &  R.  75. 

®  Osgood  I'.  Manhattan  Co.,  3  Cowen,  611.  See,  also,  Fordham  v.  Wallis, 
10  Hare,  217. 

'"  Daniels  v.  Potter,  M.  &  M.  501,  per  Tindal,  C.  J. ;  Morse  v.  Royal,  12 
Ves.  362,  per  Ld.  Erskine.  See  R.  v.  Hardwick,  11  East,  585,  where  Ld. 
Ellenborough  lays  down  the  rule  somewhat  too  loosely. 

(3529) 


662        ADMISSIONS  BY  INHABITANTS  OF  TOWNSHIPS,  ETC.         [PAET  11. 

in  criminal  proceedings,  as  the  law  cannot  recognise  any  partnership 
!0r  joint  interest  in  crime.^ 


§  752.  One  apparent  exception  to  this  last  proposition  prevails,  2  6^2 
where  the  inhabitants  of  townships,  counties,  or  other  territorial 
divisions  of  the  country,  sue  or  are  prosecuted  eo  nomine  ;  but  in 
these  cases  they  are  regarded  in  the  light  of  a  corporation,  of  which 
each  individual  inhabitant  forms  a  component  part  ;  and  therefore 
it  is  entirely  consistent  with  the  rule  stated  above,  to  hold  that  the 
declarations  and  admissions  of  any  one  of  such  persons  should  be 
receivable  in  evidence  against  the  collective  body.  It  has,  con- 
sequently, been  decided  on  an  indictment  against  a  township  for 
non-repair  of  a  bridge,  that  the  declarations  of  all  rateable  inhabi- 
tants, whether  actually  rated  or  not,  may  be  given  in  evidence  for 
the  Crown,  though  the  value  of  such  evidence  will  of  course  vary 
according  to  the  knowledge  and  position  of  the  declarant,  and  will 
in  many  cases  be  exceedingly  slight."  So,  also,  in  settlement  cases, 
declarations  by  rated  parishioners  will  be  evidence  against  the 
parish.^  This  rule  of  evidence  is  in  no  way  affected  by  the  statutes, 
which  render  parties  to  the  record  and  other  interested  persons 
competent  witnesses.* 

§  753.^  An  apparent  joint  interest  is  obviously  instifficient  to  ?  683 
make  the  admissions  of  one  party  receivable  against  his  compa- 
nions, where  the  reality  of  that  interest  is  the  point  in  controversy. 
A  foundation  must  first  be  laid,  by  showing,  prima  facie,  that  a 
joint  interest  exists.  Where,  therefore,  an  action  was  brought 
against  a  party  for  money  had  and  received,  and  the  plaintiff,  in 
order  to  prove  the  receipt  of  the  money  by  the  defendant,  tendered 
in  evidence  certain  statements,  which  had  been  made  by  a  person 
whom  the  defendant  had  taken  into  partnership  subsequently  to  the 
transaction  in  question,  the  court  rejected  the  evidence  of  these 

'  Grant  v.  Jackson,  Pea.  R.  204,  per  Ld.  Kenyon. 

2R.  V.  Adderbury  East,  5  Q.  B.  187,  189,  n.  a.;  R.  v.  Hard  wick,  11  East, 
586,  per  Ld.  Ellenborough. 

2  R.  V.  Hardwick,  11  East,  579  ;  R.  v.  Whitley  Lower,  1  M.  &.  Sel.  636  ;  R. 
V.  Woburn,  10  East,  395. 

*  See  6  &  7  V.,  c.  85  ;  14  &  15  V.,  c.  99  ;  16  &  17  Y.,  c.  83. 

^  Gr.  Ev.  I  177,  in  part. 

(3530)  • 


CHAP.  XIV.]        REALITY  OF  JOINT  INTEREST  MUST  BE  PROVED.  663 

statements,  on  the  ground  that  a  joint  liability  could  not  be  pre- 
sumed from  the  mere  fact  of  a  subsequent  partnership.'  Again, 
the  existence  of  a  joint  interest  which  is  disputed,  cannot  be  es- 
tablished by  the  admission  of  one  of  the  parties  sought  to  be 
charged,  but  this  fact  must  be  established  by  independent  proof. 
Therefore,  in  an  action  against  three  makers  of  a  promissory  note, 
the  joint  execution  of  which  was  the  point  in  issue,  the  admission 
of  his  signature  by  one  defendant  was  held  insufficient  to  entitle 
the  plaintiff  to  recover  against  him  and  the  others,  though  theirs 
had  been  proved;  the  point  to  be  established  against  all  being  a 
joint  promise  by  all.^  And  where  it  is  sought  to  charge  several  as 
partners,  an  admission  of  the  fact  of  partnership  by  one  is  not 
receivable  in  evidence  against  any  of  the  others,  to  prove  the  part- 
nership; but  it  is  only  after  the  partnership  is  shown  to  exist  by 
independent  proof  satisfactory  to  the  judge,  that  the  admission  of 
one  of  the  parties  are  received  in  order  to  aft'ect  the  others.^  As, 
however,  the  admissions  are  evidence  against  the  party  making 
them,  he  will  be  bound  thereby,  either  in  an  action  brought  against 
him  as  surviving  partner,  or  even,  if  he  be  sued  on  the  joint  promise 
with  his  co-partners,  provided  they  have  let  judgment  go  bv 
default.* 


§  754.  In  general,  the  statement  of  defence  made  by  one  de-  |  684 
fendant  cannot  be  read  in  evidence  either  for  or  against  his  co- 
defendant;  neither  can  the  answer  to  interrogatories  of  one 
defendant  be  read  in  evidence,  excepting  against  himself;''  the 
reason  being,  that,  as  there  is  no  issue  between  the  defendants, 
no  opportunity  can  have  been  afiorded  for  cross-examination;®  and 

1  Catt  V.  Howard,  3  Stark.  K.  3,  5,  per  Abbott,  C.  J. 

"^  Gray  v.  Palmers,  1  Esp.  135. 

3  Nicholls  V.  Doweling,  1  Stark.  R.  81;  Gibbons  v.  Wilcox,  2  Stark.  R.  43; 
Grant  v.  Jackson,  Pea.  R.  204,  per  Ld.  Kenyon;  Van  Reimsdyk  v.  Kane,  1 
Gall.  635;  Harris  v.  Wilson,  7  Wend.  57;  Burgess  v.  Lane,  3  Greenl.  165;  But- 
ton I'.  Woodman,  9  Gush.  255,  260. 

*  Sangster  v.  Mazarredo,  1  Stark.  R.  161,  per  Ld.  Ellenborough ;  Ellis  v. 
Watson,  2  Stark.  R.  453,  478,  per  Abbott,  C.  J. 

*  See  Meyer  v.  Montriou,  9  Beav.  521 ;  Stephens  v.  Heathcote,  2  Drew.  & 
Sm.  138;  Parker  v.  Morrell,  2  Phill.  463,  per  Ld.  Cottenham;  Hoare  v. 
Johnstone,  2  Keen,  553;  Saltmarsh  v.  Hardy,  42  L.  J.,  Ch.  422,  per  Ld.  Sel- 
borne,  C. 

*  Jones  V.  Turberville,  2  Ves.  11;  Morse  v.  Royal,  12  Ves.  355,  361,  362. 

(3531) 


664  ADMISSIONS  BY  REPRESENTATIVES  OF  OTHERS.  [PART  II. 

moreover,  if  such  a  course  were  allowed,  the  plaintiff  might  make 
one  of  his  friends  a  defendant,  and  thus  gain  a  most  unfair  ad- 
vantage.' But  this  rule  does  not  apply  to  cases,  where  the  other 
defendant  claims  thi'ough  the  party  whose  defence  is  offered  in 
evidence;  nor  to  cases,  where  they  have  a  joint  interest,  either  as 
partners  or  otherwise,  in  the  transaction."  Wherever  the  admis- 
sion of  one  party  would  be  good  evidence  against  another  party, 
the  defence  of  the  former  may,  a  fortiori,  be  read  against  the  latter.' 


§  755.  Where  parties  either  sue  or  are  sued  in  a  representative  §  685 
character,  it  may  be  questionable  how  far  statements  made  by  them 
before  they  were  comjjietely  clothed  tvith  that  character,  will  be  admis- 
sible against  them,  so  as  to  affect  the  interest  of  the  persons  they 
represent.  In  one  case,  Chief  Justice  Tindal  is  reported  to  have  re- 
ceived an  admission  of  a  person,  who  was  suing  as  the  assignee,  now 
called  the  trustee,  of  a  bankrupt,  though  it  was  made  before  he  be- 
came such;*  but  Lord  Tenterden  has  ruled  otherwise  on  precisely 
the  same  point  ;^  and  in  weighing  the  respective  merits  of  these 
decisions,  the  reader  will  probably  be  of  opinion  that  Lord  Tenter- 
den's  was  correct.  It  certainly  appears  to  be  a  somewhat  startling 
proposition,  that  the  assets  of  a  testator,  and  the  consequent  rights 
of  legatees,  may  be  affected  by  some  inconsiderate  statement,  which 
the  executor,  before  the  death  of  the  testator,  may  have  been  in- 
duced to  make;*^  and  the  more  so,  as  even  the  sworn  admission  of 
a  married  woman,  answering  to  a  bill  in  Chancery  jointly  with  her 
husband,  has, — except  so  far  as  it  related  to  her  separate  estate,^ — 


J  Wycli  V.  Meal,  3  P.  Wms.  311. 

^  Petherick  v.  Turner,  cited  1  Taunt.  104;  Pritchard  v.  Draper,  1  Russ.  & 
Myl.  191;  Hiliard  v.  Phaley,  8  Mod.  180;  Field  v.  Holland,  6  Cranch,  8,  24; 
Clark's  Ex.  v.  Van  Eeimsdyk,  9  Cranch,  153,  156.  See  Parker  v.  Morrell,  2 
Phill.  453;  2  C.  &  Kir.  599,  S.  C. ;  cited  ante,  §  599. 

'  Van  Keimsdyk  v.  Kane,  1  Gall.  630,  635. 

*  Smith  V.  Morgan,  2  M.  &  Rob.  257. 

^  Fen  wick  v.  Thornton,  M.  &  M.  51.  See,  also,  Metters  v.  Brown,  32 
L.  J.,  Ex.  140,  per  Pollock,  C.  B.;  1  H.  &  C.  691,  S.  C. ;  Plant  i).  M'Ewen, 
4  Conn.  544. 

*  See  Legge  v.  Edmonds,  25  L.  J.,  Ch.  125,  which  confirms  the  law  as  stated 
in  the  text. 

^  Callow  v.  Howie,  1  De  Gex  &  Sm.  531 ;  Clive  v.  Carew,  1  Johns.  &  Hem. 
199,  207. 

(3532) 


CHAP.  XIV.]      ADMISSIONS  OF   PERSONS  INTERESTED  IN  SUIT.  665 

been  rejected  after  his  death,  as  against  her,  it  being  considered  as 
the  answer  of  the  husband  alone.'  Neither  can  the  affidavit  of  a 
guardian  of  an  infant  defendant  be  read  against  the  infant  in  another 
suit;^  though  it  may  be  used  against  the  guardian  himself,  if  he 
afterwards  be  sued  in  his  private  capacity,  for  it  is  his  own  admission 
upon  oath.^  The  same  doctrine  would  seem  to  apply  in  the  case  of 
a  committee  of  a  lunatic* 


§  756.^  The  admissions  of  persons  who  are  not  parties  to  the  ^  ^^^ 
record,  but  who  are  interested  in  the  subject-matter  of  the  suit,  will 
next  be  considered.  The  law,  in  regard  to  this  source  of  evidence, 
looks  chiefly  to  the  real  parties  in  interest,  and  gives  to  their  ad- 
missions the  same  weight  as  though  they  were  parties  to  the  record. 
Thus,  the  admissions  of  the  cestui  que  trust  of  a  bond,  so  far  as 
his  interest  and  that  of  the  trustee  are  identical;**  those  of  the 
persons  interested  in  a  policy  effected  in  another's  name  for  their 
benefit;  ^  those  of  the  shipowners,  in  an  action  by  the  master  for 
freight;  *  those  of  the  indemnifying  creditor,  in  an  action  against 
the  sheriff;  ^  those  of  the  deputy- sheriff  tending  to  charge  himself, 
in  an  action  against  the  high  sheriff  for  the  misconduct  of  the 
deputy; '"  those  of  rated  parishioners,  in  a  settlement  appeal,  where 


'  Hodgson  V.  Merest,  9  Price,  563;  Elston  v.  Wood,  2  Myl.  &  K.  678. 

2  Eccleston  v.  Speke,  alias  Petty,  3  Mod.  258;  2  Ventr.  72;  Carth.  79; 
Comb.  156,  S.  C. ;  Hawkins  v.  Luscombe,  2  Swanst.  392,  cases  cited  in  n.  a; 
Story,  Eq.  PI.  §  668;  Gresl.  Ev.  24,  323;  Mills  v.  Dennis,  3  Johns.  Ch.  367. 
See  ante,  |  742. 

3  Beasley  v.  Magrath,  2  Sch.  &  Lef.  34. 

*  Stanton  r.  Percival,  5  H.  of  L.  Cas.  257;  24  L.  J.,  Ch.  369,  per  Dom. 
Proc.  S.  C. 

*  Gr.  Ev.  §  180,  in  part. 

®  Hanson  v.  Parker,  1  Wils.  257.     See,  also,  Harrison  v.  Vallance,   1  Bing. 
45;  7  Moore,  304,  S.  C. ;  May  v.  Taylor,  6  M.  &  Gr.  266,  per  Maule,  J. 
'  Bell  V.  Ansley,  16  East,  143,  per  Ld.  Ellenborough. 

*  Smith  V.  Lyon,  3  Camp.  465. 

^  Dowden  v.  Fovvle,  4  Camp.  38;  Proctor  v.  Laison,  7  C.  &  P.  629,  per 
Ld.  Abinger;  Dyke  v.  Aldridge,  cited  7  T.  E.  665;  11  East,  584  ;  Young  v. 
Smith,  6  Esp.  121 ;  Harwood  v.  Keys,  1  M.  &  Rob.  204. 

'**  Snowball  v.  Goodricke,  4  B.  &  Ad.  541,  questioning  the  language  of  Ld 
Ken  yon  and  Lawrence,  J.,  in  Drake  v.  Sykes,  7  T.  E.  113,  which  seems  to 
identify  the  .sheriff  with  the  under-sheriff  to  all  intents.  Yabsley  v.  Noble, 
1  Ld.  Eay.  190.     The  declarations  of  under-sheriffs,  or  of  the  sheriff's  bailiffs, 

(3533) 


G66  ADMISSIONS  OF  PERSONS  INTERESTED  IN  SUIT.      [PART  II. 

the  churchwardens  and  overseers  of  the  poor  are  the  nominal  parties 
on  the  record; '  and,  in  short,  those  of  any  persons  who  are  repre- 
sented in  the  cause  by  other  parties, — are  receivable  in  evidence 
against  their  respective  representatives.^  On  this  ground,  it  has 
been  repeatedly  held  on  the  trial  of  election  petitions,  that  the 
declarations  of  voters  against  their  own  voters,  whether  made  before 
or  after  the  votes  were  given,^  and  even  though  invalidating  their 
votes  on  the  ground  of  their  having  received  bribes,*  are  admissible 
in  evidence;  for,  in  a  scrutiny,  each  case  is  considered  as  a  separate 
cause,  in  which  the  supporter  of  the  vote  under  discussion  and  the 
voter  are  the  parties  on  the  one  side,  and  the  opposers  of  the  vote 
are  the  parties  on  the  other.^ 

§  757.  In  all  these  cases,  the  declarations  or  admissions  must,  g  687 
as  will  presently  be  seen,®  have  been  made  while  the  party  making 
them  had  some  interest  in  the  matter;  and,  moreover,  they  are 
receivable  in  evidence  only  so  far  as  his  own  interests,  or  the 
interests  of  those  who  claim  through  him,  are  concerned.  In 
illustration  of  this  last  proposition,  it  may  be  observed,  that  if  an 
action  be  brought  by  trustees,  who  represent  the  interests  of  a 
variety  of  cestuis  que  trust,  the  statements  of  the  person  bene- 
ficially interested  as  tenant  for  life  cannot  be  received  as  evidence 
for  the  defendant,  so  as  to  prejudice  the  rights  of  the  remainder- 
men in  fee.     Indeed,  before  the  declaration  of  a  cestui  que  trust 


accompanying  official  acts,  are  admissible  as  parts  of  the  res  gestaj.  See 
Jacobs  V.  Humphrey,  2  C.  &  M.  413;  2  Tyr.  272,  S.  C;  Scott  i).  Marshall,  2 
C.  &  J.  238;  North  17.  Miles,  1  Camp.  390,  per  Ld.  Ellenborough ;  and  ante, 
§  583,  et  seq. 

1  E.  V.  Hardwick,  11  East,  579;    R.  v.  Wliitley  Lower,  1  M.  &  Sel.  636. 

^  In  Hart  v.  Horn,  2  Camp.  92,  Avhich  was  an  action  of  replevin,  the  decla- 
rations of  the  person,  under  whom  the  defendant  made  cognizance,  were 
rejected  by  Heath,  J.,  as  evidence  for  the  plaintiff;  but  it  is  presumed  that 
this  case  is  not  law.     See  Welstead  v.  Levy,  1  M.  &  Rob.  138. 

»  Southampton  case,  Cock.  &  R.  113—117;  Per.  &  K.  225,  S.  C;  Ripon 
case,  Cock.  &  R.  301;  Per.  &  K.  211,  S.  C;  Petersfield  case,  Cock.  &  R.  34 ; 
Per.  &K.  49,  S.  C;  New  Windsor,  Knapp  &  O.  173,  174;  Ennis,  id.  435; 
Droitwich,  id.  64;  Bedfordshire,  2  Luders,  411;  and  other  cases  cited  2  Rog. 
on  Elect.  139. 

*  Ipswich,  Knapp  &  O.  387—389;   and  cases  cited  2  Rog.  on  Elect.  139. 

*  2  Rog.  on  Elect.  139.  ^  Post,  §  794. 

(3534) 


CHAP,    XIV.]  TENANT    FOR   LIFE — TENANT    IN   TAIL.  667 

will  be  admitted  at  all  against  a  trustee,  the  nature  of  the  interest 
of  the  declarant  in  the  trust  estate  must  be  shown,  so  that  it  may 
clearly  appear  that  he  alone  is  entitled  to  the  benefit  resulting  from 
the  action.^ 


§  758.  In  applying  the  rule  that  a  man's  admissions  are  only  I  687a 
evidence  against  himself  and  his  privies,  care  must  be  taken  to 
distinguish  between  the  position  of  a  tenant  for  life  and  that  of  a 
tenant  in  tail.  A  tenant  for  life  cannot — unless  empowered  by 
some  special  statute  " — prejudice,  by  an  admission,  the  interest  of 
a  remainder-man  or  reversioner;  but  a  tenant  in  tail  is  regarded 
as  representing  the  inheritance,  and,  therefore,  what  he  says  or 
does  will  often  be  binding  on  the  persons  entitled  in  remainder. 
Thus,  the  law  is  well  settled  that  a  release  of  the  equity  of  redemp- 
tion by  a  tenant  in  tail  in  possession,^  or  a  decree  of  foreclosure 
against  him,  will  bind  the  remainder-man  ;  *  and  the  acknowledg- 
ment by  a  tenant  in  tail  of  a  mortgage  title,  which,  in  the  absence 
of  such  admission,  would  have  been  barred  by  the  equitable  rule 
respecting  limitations,  has  been  held  to  restore,  as  against  the 
remainder-man,  the  right  of  redemption,^ 

§  759.®  In  some  cases,  the  admissions  of  third  persons,  strangers  I  688 
to  the  suit,  are  receivable.  These  exceptions  to  the  general  rule 
arise  when  the  issue  is  substantially  upon  the  mutual  rights  of 
such  persons  at  a  particular  time  ;  in  which  cases  the  practice 
is  to  let  in  such  evidence  in  general,  as  would  be  legally  admissible 
in  an  action  between  the  parties  themselves.  Thus,  the  admissions 
of  a  bankrupt,  made  before  the  act  of  bankruptcy,  are  receivable  in 
proof  of  the  petitioning  creditor's  debt  ;'  but  if  made  after  the  act 
of  bankruptcy,   though   admissible  against    himself,^  they  cannot 

1  Doe  V.  Wainwriglit,  8  A.  «&  E.  691,  699,  700  ;  3  N.  &  M.  598,  S.  C;   May 
V.  Taylor,  6  M.  &  Gr.  261. 
"^  See  ante,  I  692,  n.^,  and  post,  §  1088,  n.,  at  7th  line  from  end  of  sect. 
'  Reynoldson  v.  Perkins,  Amb.  563. 
*  Pendleton  v.  Rooth,  1  Giff.  45,  per  Stuart,  V.-C. 
^  Id.  1  Gifif.  35  ;  1  De  Gex,  F.  &  J.  81,  S.  C. 
6  Gr.  Ev.  §  181,  in  part. 
'  See  Coole  v.  Braliam,  3  Ex.  R.  185. 
8  Jarrett  v.  Leonard,  2  M.  &  Sel.  265. 

(3535) 


689 


668      ADMISSIONS    OF    PERSONS    EXPRESSLY    REFERRED   TO,      [PART  II. 

furnisli  evidence  against   the  trustee,   because  of  the   intervening 
rights  of  creditors,  and  the  danger  of  fraud.' 

§  760.-  The  admissions  of  a  third  person  are  also  receivable  in  ^ 
evidence  against  the  party  who  has  expressly  refen^ed  another  to 
him  for  information  in  regard  to  an  uncertain  or  disputed  matter. 
In  such  cases  the  party  is  bound  by  the  declaration  of  the  person 
referred  to,  in  the  same  manner,  and  to  the  same  extent,  as  if 
they  were  made  by  himself.  Thus,  upon  a  plea  of  plene  adminis- 
travit,  where  the  executors  wrote  to  the  plaintiff,  that  if  she 
wished  for  further  information  in  regard  to  the  assets,  she  should 
apply  to  a  certain  merchant  in  the  city,  they  were  held  bound  by 
the  replies  of  the  merchant  to  her  inquiries  upon  that  subject.' 
So,  in  an  action  for  goods  sold  and  delivered,  where  the  fact  of 
the  delivery  of  them  by  the  carman  was  disputed,  and  the  defen- 
dant said,  "  If  he  will  say  that  he  delivered  the  goods,  I  will  pay 
for  them  ; "  he  was  held  bound  by  the  affirmative  reply  of  the 
carman.* 

§  761.  In  the  application  of  this  principle,  it  matters  not  §  690 
whether  the  question  referred  be  one  of  law  or  of  fact  ;  whether 
the  person  to  whom  reference  is  made,  have  or  have  not  any 
peculiar  knowledofe  on  the  subject ;  or  whether  the  statements  of 
the  reference  be  adduced  in  evidence  in  an  action  on  contract,  or  in 
an  action  for  tort.  Therefore,  where  two  parties  had  agreed  to 
abide  by  the  opinion  of  counsel  upon  the  construction  of  a  statute, 
the  party  against  whose  interest  the  opinion  operated  was  held 
bound  thereby    in  a  subsequent    action  ;  ^  and    a    disputed    fact 

^  Hoare  v.  Cory  ton,  4  Taunt.  560 ;  2  Eose,  158,  S.  C. ;  Robson  v.  Kemp,  4 
Esp.  234  ;  Watts  v.  Thorpe,  1  Camp.  376  ;  Smallcombe  v.  Bruges,  McClel.  45  ; 
13  Price,  136,  S.  C. ;  Taylor  v.  Kiuloch,  1  Stark.  R.  175  ;  2  Stark.  R.  594, 
S.  C.  These  cases  virtually  overrule  Dowton  v.  Cross,  1  Esp.  168.  See,  also, 
Bernasconi  v.  Farebrother,  3  B.  &  A.  D.  372. 

^  Gr.  Ev.  §  182,  almost  verbatim. 

^  Williams  v.  Innes,  1  Camp.  364,  per  Ld.  Ellenborough. 

*  Daniel  v.  Pitt,  Pea.  Ad.  Cas.  238  ;  1  Camp.  366,  n.  ;  6  Esp.  74,  S.  C.  ; 
Brock  V.  Kent,  1  Camp.  366,  n. ;  Burt  v.  Palmer,  5  Esp.  145  ;  Hood  v.  Reeve, 
3  C.  &  P.  532.  R.  V.  Mallory,  L.  R.,  13  Q.  B.  D.  33  ;.53  L.  J.,  M.  C.  1.34  ;  15 
Cox,  456,  S.  C,  where  the  person  referred  to  by  a  prisoner  was  his  wife,  who 
thereupon  made  an  admission  in  his  presence,  and  this  admission  was  held  to 
be  good  evidence. 

^  Price  V.  Hollis,  1  M.  &  Sel.  105. 

(3536) 


CHAP.  XIV.]       ADMISSIONS  BY  PERSONS  EXPRESSLY  REFERRED  TO.      669 

regarding  a  mine,  having  been  referred  by  consent  to  a  miner's 
jury,  tlieir  decision  was  received  in  evidence  when  one  of  the 
disputants  afterwards  brought  an  action  on  the  case  against  his 
adversary.'  In  these  cases  the  decisions,  which  partook  of  the 
nature  of  awards,  were  not  stamped;  but  the  court  held  that 
this  was  immaterial,  as  the  instruments,  not  containing  any 
recital  of  the  agreements,  did  not  on  their  face  purport  to  be 
awards. 

§  762.  The  doctrine  under  discussion  may  further  be  illustrated  ?  690 
by  the  case  of  Downs  v.  Cooper."  There  the  defendant  had  de- 
mised premises  to  the  plaintiff,  who  entered  and  paid  him  rent. 
During  the  term  a  brother  of  the  defendant  disputed  his  title,  and 
to  avoid  litigation  between  brothers,  both,  within  the  knowledge 
of  the  plaintiff,  agreed  to  abide  by  the  opinion  of  a  barrister,  to 
whom  a  case  was  submitted.  The  opinion  being  adverse  to  the 
defendant,  he  thereupon  gave  up  his  title  deeds,  and  permitted 
his  brother's  attorney  to  tell  the  plaintiff,  that  in  future  he  must 
regard  the  brother  as  his  landlord.  The  plaintiff"  paid  his  rent 
accordingly;  but  the  defendant  being  subsequently  dissatisfied  with 
the  barrister's  opinion,  levied  a  distress,  and  an  action  of  replevin 
was  the  consequence.  The  above  facts  being  stated  in  the  plea  in 
bar,  the  court  held,  that,  though  in  general  a  tenant  is  estopped 
from  denying  his  landlord's  title,  he  was  not  so  here,  inasmuch  as 
the  conduct  of  the  defendant  amounted  to  an  admission  that  his 
title  had  expired. 

§  763.  To  render  the  declarations  of  a  person  referred  to  equiva-  ?  691 
lent  to  a  party's  own  admission,  it  is  not  necssary  that  the 
reference  should  have  been  made  by  express  words;  but  it  will 
suffice  if  the  party  by  his  conduct  has  tacitly  evinced  an  intention 
to  rely  on  the  statements  as  correct.  Therefore,  where  a  party,  on 
being  questioned  by  means  of  an  interpreter,  gave  his  answers 
through  the  same  medium,  it  has  been  held  that  the  language  of 
the  interpreter  should  be  considered  as  that  of  the  party;  and  that, 


Sybray  r.  White,  1  I\I.  &  W.  435;  Tyr.  Gr.  746,  S.  C. 
2  Q.  B.  256. 

(3537) 


670  ADMISSIONS  BY  PERSONS  EXPRESSLY  REFERRED  TO.       [PART  II. 

consequently,  it  might  be  proved  by  any  person  who  heard  it, 
without  calling  the  interpreter  himself.'  So,  if  a  party,  on  motion 
before  a  judge,  uses  the  affidavit  of  another  person  to  prove  a 
certain  fact  deposed  to  therein,  such  affidavit  is  on  any  subsequent 
trial  evidence  as  against  him  of  this  fact,  and  that,  too,  though 
the  person  who  made  the  affidavit  is  present  in  court  ;^  and  where 
a  petitioning  creditor,  knowing  that  his  servant  could  prove  a 
particular  act  of  bankruptcy,  sent  him  expressly  for  that  purpose 
to  be  examined  at  the  opening  of  the  fiat,  the  depositions  so  made 
were  held  to  be  evidence  of  the  act  of  bankruptcy  as  against  the 
petitioning  creditor,  where  that  fact  was  put  in  issue  in  an  action 
brought  against  him  by  the  assignees.^ 

§  764.  It  has  even  been  held, — apparently  on  the  authority  of  §  692 
these  cases, — that,  where  the  question  in  an  action  of  trespass  was 
whether  the  plaintiff  or  defendant  was  the  tenant  of  a  field,  the 
deposition  of  a  witness  who,  in  a  proceeding  before  justices  for  an 
alleged  trespass  on  the  same  close,  had  been  called  by  the  plaintiff 
to  prove  his  possession,  but  had  in  fact  disproved  it,  might  be  put 
in  evidence  for  the  defendant,  though  the  witness  was  alive.*  In 
this  case,  however,  as  the  witness  was  abroad  at  the  time  of  the 
trial,  and  as  the  litigants  and  the  matter  in  dispute  before  the 
justices  were  identical  with  those  before  the  court,  the  depositions 
would  seem  to  have  been  admissible,  rather  as  secondary  evidence 
of  oral  testimony^  than  as  admissions  by  the  accredited  agent  of 
the  plaintiff.*'  In  this  last  light  they  could  scarcely  have  been 
viewed,  consistently  with  the  opinion  of  the  court,  as  expressed  in 
Gardner  v.  Moult,'  or  Brickell  v.  Hulse;*  for  in  both  these  cases 
the  judges  expressly  admitted,  that  a  party  was  not  bound  by  what 
his  witness  might  say  at  Nisi  Prius. 


'  Fabrigas  v.  Mostyn,  20  How.  St.  Tr.  122,  123,  per  Gould,  .T. 

==  Brickell  v.  Hulse,  7  A.  &  E.  454;  Boileau  v.  Rutlin,  2  Ex.  E.  675,  679, 
680;  Pritchard  v.  Bagshawe,  11  Com.  B.  459;  Johnson  v.  Ward,  G  Esp.  47, 
per  Chambre,  J.     But  see  White  v.  Dowling,  8  Jr.  Law  R.  128. 

3  Gardner  v.  Moult,  10  A.  &  E.  464;  Boileau  v.  Eutlin,  2  Ex.  R.  680. 

*  Cole  V.  Headly,  11  A.  &  E.  807.  *  Ante,  ?  464. 

^  See  Boileau  v.  Rutlin,  2  Ex.  R.  680,  per  Parke,  B. 

Mo  A.  &  E.  468,  per  Ld.  Denman  &  Patteson,  J. 

«  7  A.  &  E.  456^458,  per  Ld.  Denman  &  Coleridge,  J.     See  ante,  §  469. 

(3538) 


CHAP.  XIV.]     WHETHER  ANSWERS  OF   REFEREE  ARE  CONCLUSIVE.    671 

§  765.^  Whether  the  answer  of  a  person  thus  referred  to  is  ^  693 
conclusive  against  the  party  does  not  seem  to  have  been  settled. 
Where  the  plaintiff  had  offered  to  rest  his  claim  upon  the  defen- 
dant's affidavit,  which  was  accordingly  made,  Lord  Kenyon  held 
that  he  was  conclusively  bound,  even  though  the  affidavit  were 
false;  and  he  added,  that,  to  make  such  a  proposition  and  after- 
wards to  recede  from  it,  was  not  only  a  dishonest  act,  but  was  one 
which  might  be  turned  to  very  improper  purposes,  such  as  to 
entrap  the  witness,  or  to  find  out  how  far  the  party's  evidence 
would  go  in  support  of  his  case.'  But  in  a  later  case,  where  the 
question  was  whether  a  horse  in  the  defendant's  possession  was 
identical  with  one  lost  by  the  plaintiff,  and  the  plaintiff  had  said 
that  if  the  defendant  would  take  his  oath  that  the  horse  was  his, 
he  should  keep  him;  and  he  made  oath  accordingly;  Lord  Ten- 
terden  observed,  that  considering  the  loose  manner  in  which  the 
evidence  had  been  given,  he  would  not  receive  it  as  conclusive, 
though  it  was  a  circumstance  on  which  he  should  not  fail  to 
remark  to  the  jury.^  And  certainly  the  opinion  of  Lord 
Tenterden,  indicated  by  what  fell  from  him  in  this  case,  more 
perfectly  harmonizes  with  other  parts  of  the  law,  especially  as  it  is 
opposed  to  any  further  extension  of  the  doctrine  of  estoppels,  which 
precludes  the  investigation  of  truth.  The  purposes  of  justice  and 
policy  are  sufficiently  answered,  by  throwing  the  burthen  of  proof 
on  the  opposing  party,  as  in  the  case  of  an  award,  and  by  holding 
him  bound,  unless  he  can  impeach  the  test  referred  to  by  clear 
proof  of  fraud  or  mistake.* 

§  766.  It  may  here  be  expedient  to  examine  briefly  how  far  the    §  694 
admissions  of  a  married  ivoman  can  be  received  in  evidence,  either 
against  herself  or    her  trustees,  or  for  or  against   her  husband. 
If  a  wife  sue  or  be  sued  as  a  single  ivoman,  no  valid  reason  can 
be  given  why  her  admissions  should  not  have  the  same  legal  effect 


'  Gr.  Ev.  1 184,  in  great  part. 

*  Stevens  v.  Thacker,  Pea.  R.  187;  Lloyd  v.  Willan,  1  Esp.  178;  Bretton  v. 
Prettiman,  T.  Ray.  153;  Delesline  v.  Greenland,  1  Bay,  458,  where  the  oath 
of  a  third  person  was  referred  to. 

5  Garnet  v.  Ball,  3  Stark.  R.  160. 

♦  Whitehead  v.  Tattersall,  1  A.  &  E.  491. 

(3539) 


672  ADMISSIONS  BY  WIFE.  WHEN  RECEIVABLE.  [PART  II. 

as  those  of  any  other  person;  but  in  one  case,  where  the  defence 
to  an  action  on  contract  was  that  the  plaintiff  was  under  coverture 
when  the  cause  of  action  accrued,  Lord  Ellen])orough  is  reported 
to  have  held,—  on  what  grounds  it  does  not  appear, — that  it  was  not 
sufficient  to  show  that  she  had  acknowledged  herself  to  be  married. 
without  proof  of  an  actual  marriage,  or  at  least  of  cohabitation.' 
If  the  trustees  of  a  married  woman  sue  or  be  sued,  and  the  opposite 
party  be  a  stranger,  her  admissions,  like  those  of  an  ordinary 
cestui  que  trust,^  will  be  clearly  admissible  as  against  the  trustees; 
and  even  if  the  husband  be  the  hostile  party,  it  seems  that,  on 
principle,  the  wife's  admissions  ought  to  be  received  on  his  behalf 
to  the  same  extent  as  her  viva  voce  testimony;^  for  the  principle 
of  policy  which  admits  the  one  should  equally  admit  the  other; 
and,  therefore,  it  is  probable  that  if  an  action  were  brought  against 
a  husband  by  the  trustees  of  his  wife  under  a  separation  deed, 
for  arrears  of  maintenance,  and  the  defence  were  to  rest  on  the 
fact  of  the  wife's  adultery,  proof  of  her  admission  of  criminal 
misconduct  would, — contrary  to  what  was  formerly  the  law,* — be 
now  received. 


§  767.  The  admissions  of  a  wife  cannot  be  received  in  evidence  ?  695 
for  her  husband  in  any  suit  between  him  and  a  stranger,  unless, 
perhaps,  in  the  single  event  of  their  constituting  part  of  the  res 
gestae.  An  instance  of  their  admissibility  on  this  ground  is 
afforded  by  the  case  of  Walton  v.  Green,^  where,  in  an  action  of 
assumpsit  for  goods  supplied  to  a  wife,  who  had  been  turned  out 
of  doors  by  her  husband  the  defendant,  evidence  was  admitted,  in 
support  of  a  defence  which  relied  on  her  previous  adultery,  that 
she  had  confessed  her  guilt  to  a  third  party;  as  it  appeared  to  have 
been  partly  in  consequence  of  this  confession  that  she  had  been 
put  away  by  her  husband.  This  case  is  here  noticed,  more  out  of 
respect  for  the  eminent  judge  who  decided  it,  than  because  it  appears 
to  rest  upon  any  sound  principle  of  law.  The  question  was  not 
whether  the  husband  had  reason  to  suspect  his  wife's  fidelity,  but 


I  Wilson  V.  Mitchell,  3  Camp.  393.  ^  See  ante,  §  756, 

3  See  16  &  17  v.,  c.  83.  *  Scholey  v.  Goodman,  1  Bing.  349. 

6  1  C.  &  P.  621,  per  Abbott,  C.  J. 

(3540) 


CHAP.  XIV.]  wife's  confessions  of  adultery.  673 

whether  she  had  in  fact  committed  adultery  ;  and  to  allow  her 
admissions  to  establish  that  fact,  and  thus  to  screen  her  husband 
fx'om  the  claims  of  a  stranger,  would  seem  to  be  directly  opposed  to 
the  rule  of  law  which  rejects  hearsay  evidence. 


§  768.  It  remains  to  be  seen  in  what  manner  the  Divorce  §  696 
Division  of  the  High  Court'  will  deal  with  the  wife's  admissions 
of  adultery,  on  applications  for  judicial  separation,  or  for  restitu- 
tion of  conjugal  rights,  and  on  petitions  for  dissolution  of  mar- 
riage. The  unfettered  reception  of  such  evidence  in  the  last  class 
of  cases,  would  open  a  wide  door  to  collusion  :  and  on  this  ground, 
the  House  of  Lords,  in  proceedings  upon  bills  of  divorce,  was 
generally  in  the  habit  of  rejecting  letters  from  the  wife  to  the 
husband  containing  confessions  of  adultery,"  unless  they  were 
ordered  in  confirmation  of  circumstances  which  tended  strongly 
to  prove  the  defendant's  guilt.''  It  seems,  however,  that  such 
letters,  if  addressed  to  a  stranger,  or  even  to  the  husband's  agent, 
were  receivable  in  evidence,  after  proof  that  they  were  not  written 
in  consequence  of  any  threat  or  promise,  and  that  the  writer  was 
then  living  apart  from  her  husband  ;*  and  it  further  seems,  that 
the  wife's  oral  confession  of  guilt  to  a  third  party  was  admissible, 
at  least  as  confirmatory  evidence.^  Not  only  were  direct  confes- 
sions rejected  in  the  House  of  Lords,  except  under  the  circum- 
stances above  stated,  but  all  letters  written  by  the  wife  after  her 
separation,  either  to  the  husband  or  to  the  adulterer,  were 
generally  held  inadmissible,  unless  they  were  connected  with 
some  particular  fact,"  or  could  be  referred  to  as  part  of  the  res 
gestse,^  or  were  tendered  in  evidence  after  a  prima  facie  case  of 
guilt  had  been  already  established.  In  one  case,  where  the 
husband  held  a  situation  at  Malta,  and  his  wife,  in  consequence 
of  bad  health,  had  left  the  island,   and  had  resided  in  England 


*  The  Act  of  20  &  21  V.,  c.  85,  and  the  Rules  which  regulate  the  practice 
of  the  court,  are  alike  silent  on  this  subject. 

*  Ld.  Cloncurry's  case,  Macq.  Pr.  in  H.  of  L.  606. 
^  Doyly's  case,  id.  654.     See  id.  536,  537. 

*  Ld.  Cloncurry's  case,  Macq.  Pr.  in  H.  of  L.  606. 

^  Ld.  Ellenborough's  case,  id.  655.     But  see  Wiseman's  case,  id.  63L 
®  Dundas's  case,  id.  610.  ^  Boydell's  case,  id.  651. 

(3541) 


GT-l  wife's  confessions  of  adultery.  [part  II, 

for  several  years,  during  •which  time  she  had  lived  with  a  paramour 
and  had  borne  him  four  children,  the  House  of  Lords  admitted  a 
series  of  letters  from  the  wife  to  her  husband,  which  were  tendered 
as  accounting  for  the  circumstance  of  her  not  going  out  to  rejoin 
him,  and  as  showing  that  she  had  practised  upon  him  the  grossest 
deceit/ 


§  7G9.  In  the  Ecclesiastical  Courts  a  less  strict  rule  obtained  ?  697 
than  was  observed  in  the  Common  Law  Courts,  with  respect  to 
the  exclusion  of  a  uife''s  confession.  By  a  canon"  passed  in  1G03, 
a  mere  confession,  indeed,  unaccompanied  by  other  circumstances, 
was  rendered  insufficient  to  support  a  prayer  for  a  separation  a 
mensa  et  thoro  ;  and  this  rule  has  been  held  applicable,  though 
the  confession  was  made  under  the  apprehension  of  approaching 
dissolution,  and  was  free  from  all  suspicion  of  a  collusive  purpose.* 
Still  the  confession  was  always  admissible  in  evidence,  and,  if 
coupled  with  other  facts  of  a  suspicious  nature,  it  generally  proved 
an  important  ingredient  in  the  decision  of  the  court.  In  one  case, 
letters  from  the  wife  to  the  supposed  paramour,  taken  in  conjunc- 
tion with  other  suspicious  circumstances,  were,  in  the  absence  of 
direct  proof,  considered  to  establish  her  guilt,  though  they  con- 
tained no  express  avowal  of  adultery,  and  though  they  never 
reached  the  hands  of  the  party  to  whom  they  were  addressed, 
as  they  were  intercepted  by  the  husband.*  Whether  the  wife's 
confession  of  adultery  would  be  sufficient  in  itself  to  repel  a  suit 
instituted  by  her  for  restitution  of  conjugal  rights,  was  still  an 
undecided  point  when  the  Spiritual  Courts  were  deprived  by 
the  Legislature  of  their  jurisdiction  over  such  matters  f  but,  in 


1  Miller's  case,  id.  620—623.  ^  No.  105. 

^  Mortimer  v.  Mortimer,  2  Hagg.  Cons.  316. 

*  Grant  v.  Grant,  2  Curt.  16 ;  Caton  v.  Caton,  7  Ec.  &  Mar.  Cas.  15—17  ; 
Faussett  v.  Faussett,  id.  88.  In  the  Eccles.  Courts,  letters  from  the  alleged 
paramour,  found  in  the  wife's  possession,  were  admissible  ;  but  if  they  did  not 
necessarily  imply  the  commission  of  adultery,  or  were  not  supported  by  other 
evidence  of  indecent  Aimiliarities,  they  were  insufficient  to  support  a  sentence 
of  separation.  Hamerton  v.  Hamerton,  2  Hagg.  Ec.  R.  8.  As  to  the  ad- 
missibility of  letters  written  by  the  adulterer  to  the  wife,  in  proceedings  before 
the  H.  of  L.,  see  Ld.  Glerawley's  case,  Macq.  Pr.  in  H.  of  L.  629. 

*  Mortimer  v.   Mortimer,  2  Hagg.   Cons.  310 ;  Burgess  v.   Burgess,  id.  227. 

(3542) 


CHAP.   XIV.]        WIIEX  ADMISSIONS  OF  WIFE  BIND  HUSBAND.  G75 

a  suit  of  nullity  of  marriage,  by  reason  of  a  former  marriage, 
the  simple  admission  of  such  former  marriage  was  held  not  to  be 
sufficient.^ 


§  770."  The  admissions  of  the  ivife  will  bind  the  husband  only  ?  698 
where  she  had  authority  to  make  them.^  This  authority  does  not 
result,  by  mere  operation  of  law,  from  the  relation  of  husband 
and  wife;  but  is  a  question  of  fact,  to  be  found  by  the  jury, 
as  in  other  cases  of  agency;  for,  though  this  relation  is  peculiar 
in  its  circumstances,  from  its  close  intimacy  and  its  very  natvire, 
yet  there  is  nothing  peculiar  in  the  principles  of  law  which  apply 
to  it.  As  the  wife  is  seldom  expressly  constituted  the  agent  of 
the  husband,  the  cases  on  this  subject  are  almost  universally  those 
of  implied  authority,  turning  upon  the  degree  in  which  the  husband 
permitted  the  wife  to  participate,  either  in  the  transaction  of  his 
affairs  in  general,  or  in  the  particular  matter  in  question.*  Where, 
under  the  old  law,'^  he  sued  for  her  wages,  the  mere  fact  that  she 
had  earned  them  did  not  authorise  her  to  bind  him  by  her  admis- 
sions of  payment;*^  nor  could  her  unauthorised  declarations  affect 
him,  even  where  he  sued  with  her  in  her  right;  for  in  these,  and 
similar  cases,  the  right  was  his  own,  though  acquired  through  her 
instrumentality.' 

§  771.  In  regard  to  the  inference  of  her  agency  from  circum-    I  699 
stances,  the  question  used  to  be  left  to  the  jury  with  great  latitude, 
both   as  to  the  fact  of  agency,  and  the  time  of  the  admissions. 
Thus,  it  has  been  held  competent  for  them  to  infer  authority  in  her 


'  Searle  v.  Price,  2  Hagg.  Cons.  189.  ^  q,..  Ev.  ^  185,  in  great  part, 

^  Emerson  v.  Blonden,  1  Esp.  142;  Anderson  v.  Sanderson,  2  Stark.  R.  204; 
Carey  v.  Adkins,  4  Camp.  92;  Meredith  v.  Footner,  11  M.  &  W.  202. 

*  See  ante,  |  192. 

*  A  married  woman  may  now  sue  for  wages  in  her  own  name,  45  &  4G  V., 
c.  75,  |g  1,  2. 

•^  Hall  V.  Hill,  2  Str.  1094. 

^  Albant'.  Pritchett,  6  T.  R.  680;  Kelly  v.  Small,  2  Esp.  716;  Denn  n  White, 
7  T.  R.  112,  as  to  the  wife's  admission  of  a  trespass.  Neither  are  the  has- 
band's  admissions  as  to  facts  respecting  his  wife's  property,  which  happened 
before  the  marriage,  receivable  after  his  death  to  affect  the  rights  of  the  sur- 
viving wife.  Smith  v.  Scudder,  11  Serg.  &  R.  325. 
22   LAW  OF  EVII). — V.  II.  (354;{) 


(57G  BINDING  ADMISSIONS  BY  SOLICITORS.  [PART  II. 

to  accept  a  notice  and  direction,  in  regard  to  a  particular  transaction 
in  her  husband's  trade,  from  the  circumstances  of  her  being  seen 
twice  in  his  counting-house  appearing  to  conduct  his  business 
relating  to  that  transaction,  and  once  giving  orders  to  the  foreman.' 
And  in  an  action  against  the  husband  for  goods  furnished  to  the 
wife  while  in  the  country,  where  he  occasionally  visited  her,  her 
letter  to  the  plaintiff,  admitting  the  debt,  and  apologising  for  the 
non-payment,  though  written  several  years  after  the  transaction, 
was  held  by  Lord  Ellenborovigh,  previous  to  Lord  Tenterden's  Act,^ 
sufificient  to  take  the  case  out  of  the  Statute  of  Limitations/  Of 
late  years,  however,  a  greater  strictness  has  prevailed;  and  in  the 
case  of  Meredith  v.  Footner,*  where  a  wife,  by  her  husband's  autho- 
rity, carried  on  the  business  of  a  shop,  and  attended  to  all  the 
receipts  and  payments,  the  court  held  that  admissions  made  by  her 
to  the  landlord  of  the  shop  respecting  the  amount  of  rent  were  not 
admissible  to  bind  the  husband.  Had  the  admissions  related  to 
the  receipt  of  shop  goods,  they  would  have  been  evidence;  but  the 
fact  that  she  was  conducting  a  business  for  her  husband,  did  not 
constitute  her  his  agent  to  make  admissions  of  an  antecedent  con- 
tract for  the  hire  of  the  shop,  or  to  make  a  new  contract  for  the 
future  occupation  of  it. 

§  772.^  The  admissions  of  solicitors  bind  their  clients  in  all  I  "00 
matters  relating  to  the  progress  and  trial  of  the  action.  In  some 
cases  they  are  conclusive,  and  may  even  be  given  in  evidence  upon 
a  new  trial;  though,  previously  to  such  trial,  the  party  give  notice 
that  he  intends  to  withdraw  them,  or  though  the  pleadings  be 
altered,  provided  the  alterations  do  not  relate  to  the  admissions.® 


1  Plimmer  v.  Sells,  3  N.  &  M.  422. 

^  9  G.  4,  c.  14,  §  1,  which  rendered  it  necessary  that  an  acknowledgment, 
to  take  the  case  out  of  the  statute,  should  he  in  writing,  "  signed  by  the  party 
chargeable  thereby."  The  acknowledgment  may  now  be  signed  by  an  autho- 
rised agent,  19  &  20  V.,  c.  97,  §  13,  cited  ante,  I  745.     See  post,  §  1073. 

•'  Gregory  v.  Parker,  1  Camp.  394;  Palethorpe  v.  Furni.sh,  2  Esp.  511,  n  ; 
Clifford  V.  Burton,  1  Bing.  199;  8  Moore,  IG,  S.  C;  Petty  v.  Anderson,  3  Bing. 
170;  Cotes  v.  Davis,  1  Camp.  485. 

*  11  M.  &  W.  202. 

*  Gr.  Ev.  l\m,m  part. 

«  Elton  V.  Larkins,  1  M.  &  Rob.  196,  perTindal,  C.  J. ;  5  C.  «&  P.  385,  S.  C; 

(3544) 


CHAP.    XIV.]         INCIDENTAL    ADMISSIONS    BY    SOLICITORS.  677 

But  to  this  end  they  must  be  distinct  and  formal,  or  such  as  are 
termed  solemn  admissions,  made  for  the  express  purpose  of  relaxing 
the  stringency  of  some  rule  of  practice,  or  of  dispensing  with  the 
formal  proof  of  some  document  or  fact  at  the  trial.' 

§  773.  Another  class  of  admissions  comprehends  those  which  g  701 
solicitors  make,  nob  indeed  with  the  express  intent  of  dispensing 
with  proof  of  certain  facts,  but  as  it  were  incidentallij ,  while  they 
are  referring  to  other  matters  connected  with  the  action.  These, 
which  are  generally  the  result  of  carelessness,  though  not  regarded 
as  conclusive  admissions,  are  still  considered,  not  unfrequently,  as 
raising  an  inference  respecting  the  existence  of  facts,  .which  the 
adversary  would  otherwise  have  been  called  upon  to  prove;  and, 
consequently  it  is  very  important  that  solicitors  should  exercise 
great  caution  in  the  language  they  employ  while  corresponding  with 
their  opponents.  Thus,  where  in  an  action  against  the  acceptor  of 
a  bill,  his  solicitor  had  served  notice  on  the  plaintifP  to  produce  all 
papers  relating  to  a  bill,  the  description  of  which  corresponded  with 
that  set  forth  in  the  declaration, — "  which  said  bill,"  the  notice 
went  on  to  state,  "teas  accepted  by  the  said  defendant,''^ — the  court 
held  that  such  notice  was  prima  facie  evidence  of  the  defendant's 
acceptance  ;  ^  and  in  an  action  against  the  owners  of  a  ship,  their 
joint  ownership  was  inferred  from  an  undertaking  to  appear  for 
them,  signed  by  their  solicitor,  in  which  they  were  described  as 
owners  of  the  sloop  in  question.^  Again,  where  the  defendant's 
solicitor,  in  an  action  of  debt  on  a  bond,  had  admitted  the  signature 
of  the  attesting  witness;  this  was  held,  by  implication,  to  amount 
to  an  admission  of  the  due  execution  of  the  instrument.* 

§  774.^  Admissions,  however,  contained  in  the  mere  conversation    §  702 
of  a  solicitor,  cannot  be  received  against  a  client,  though  they  relate 

Doe  V.  Bird,  7  C.  &  P.  6,  per  Ld.  Denraan  ;  Langley  r.  Ld.  Oxford,  1  M.  &  W. 
508.  See  Hargrave  v.  Hargrave,  12  Beav.  408,  as  to  the  case  where  the  client 
is  an  infant. 

'  See  cases  cited  in  last  note.  Also,  ante,  I  724a,  et  seq.  ;  and  Young  v. 
Wright,  1  Camp.  141  ;  Doe  v.  Rollings,  4  Com.  B.  188. 

2  Holt  V.  Squire,  Ky.  &  M.  282.  per  Abbott,  C.  J. 

'  Marshall  v.  Cliif,  4  Camp.  133,  per  Ld.  Ellenborougli. 

*  Milward  v.  Temple,  1  Camp.  375,  per  Ld.  Ellenborough. 

*  Gr.  Ev.  I  186,  in  part. 

(3545; 


G7S  LETTERS    BY    SOLICITORS    WITHOUT    PREJUDICE,       [PAET    II. 

to  the  facts  in  controversy.  The  reason  of  this  distinction  is  fonnd 
in  the  nature  and  extent  of  the  authority  given,  the  solicitor  being 
constituted,  for  the  management  of  the  action  in  court,  and  for 
nothing  more.'  So,  if  a  letter  sent  by  a  solicitor  to  the  opposite 
party,  bo  expressed  to  be  written  "  without  prejudice,''''  it  cannot  be 
received  as  an  admission  ;  neither  can  the  reply  be  admitted,  though 
not  guarded  in  a  similar  manner."  If  the  admission  were  made 
before  suit,  it  will  bo  equally  binding,  provided  it  be  shown  that  the 
solicitor  was  already  retained  to  appear  in  the  action.^  But  in  the 
absence  of  any  evidence  of  such  retainer,  some  other  proof  must  be 
given  of  authority  to  make  the  admission.*  When  the  solicitor  is 
already  constituted  in  the.cause,  admissions  made  by  his  managing 
clerk,  or  his  agent,  are  received  as  his  own.^ 


§  783.  Admissions  made  by  counsel  stand  on  much  the  same  g  708 
footing  as  those  made  by  solicitoi's;  and  therefore,  where  a  special 
case  had  been  signed  by  the  junior  barrister  on  each  side,  but  as  a 
material  fact  had  been  omitted,  a  new  trial  was  granted,  the  case 
was  regarded  by  the  court  as  containing  the  admissions  of  the 
parties  to  the  facts  therein  stated,  and  its  production  was  held  to 
dispense  with  a  second  proof  of  those  facts. **  Indeed,  it  may  be 
laid  down  as  a  general  proposition  of  law,  available  alike  in  the 
Chancery  and  Common  Law  Divisions  of  the  High  Court,  that  a 
consent  once  given,  or  an  admission  made,  by  a  counsel  under  his 
signature,  with  the  authority  of  his   client,  with   a   full   knowledge 


'  Fetch  V.  Lyon,  9  Q.  B.  147  ;  Yonng  v.  AVright,  1  Camp.  139,  141  ;  Parkins 
V.  Hawkshaw,  2  Stark.  R.  239  ;  Doe  r.  Richards,  2  C.  &  Kir.  216.  See  Wilson 
V.  Turner,  1  Taunt.  398  ;  Wat,sou  v.  King,  3  Com.  B.  608. 

2  Paddock  v.  Forrester,  3  Scott,  N.  R.  734  ;  3  M.  &  Gr.  903,  S.  C. ;  Hoghton 
V.  Hoghton,  15  Beav.  321.  See  Jardine  v.  Sheridan,  2  C.  &  Kir.  24  ;  Williams 
V.  Thomas,  2  Drew.  &  Sm.  29,  37  ;  and  post,  §  795. 

^  Marshall  v.  Cliff,  4  Camp.  133,  per  Ld.  Ellenborough  ;  Gainsford  v. 
Grammar,  2  Camp.  9,  per  id. 

*  Wagstaff  V.  Wilson,  4  B.  &  Ad.  339  ;  Burghart  v.  Angerstein,  6  C.  &  P. 
695,  per  Alderson,  B. ;  Pope  v.  Andrews,  9  C.  &  P.  564,  per  Coleridge,  J. 

5  Taylor  v.  Willans,  2  B.  &  Ad.  845,  856  ;  Standage  v.  Creighton,  5  C.  & 
P.  406  ;  Griffiths  v.  Williams,  1  T.  R.  710  ;  Truslove  v.  Burton,  9  Moore, 
G4  ;  Taylor  v.  Forster,  2  C.  &  P.  195. 

®  Van  Wart  v.  Wolley,  Ry.  &  M.  4,  per  Abbott,  C.  J. ;  Edmunds  v.  New- 
man, id.  5,  n.  per  id. 

(3546) 


CHAP.  XIV.]       ADMISSIONS  BY  COUNSEL,  WHEN  EVIDENCE.  CT9 

of  the  facts,  and  -without  some  egregious  mistake,  is  conclusively 
binding,  and  cannot  afterwards  be  withdrawn.'  Again, where  counsel 
on  Loth  sides  so  conduct  a  cause,  as  to  lead  to  an  inference  that  a 
certain  fact  is  admitted  between  them,  the  court  or  the  jury  may 
treat  it  as  proved;^  and  though  the  counsel  do  so  with  respect  to 
some  fact  which  goes  to  support  one  issue  only,  that  fact,  it  seems, 
may  be  taken  for  granted  for  all  purposes,  and  as  to  the  whole  case.^ 
So,  where  a  plaintiff's  counsel  in  his  opening  stated  that  his  client 
had  paid  a  particular  cheque,  but  called  no  evidence  in  support  of 
that  fact,  the  defendant  was  allowed  to  give  secondary  evidence  of 
the  contents  of  the  cheque  after  notice  to  produce,  without  giving 
further  proof  of  the  plaintiff's  possession.* 

§  784.  In  the  case  of  Col  ledge  t'.  Horn,^  this  doctrine  was  sought  g  709 
to  be  carried  one  step  further;  and  on  a  second  trial  the  defendant 
endeavoured  to  avoid  part  of  his  opponent's  demand,  by  proving  an 
admission,  which,  on  the  former  trial,  had  been  made  in  the  plain- 
tiff's presence  by  the  plaintiff's  counsel  in  his  opening  address  to 
the  jury.  The  judge  rejected  this  evidence;  and  although  the 
court  above  subsequently  granted  a  new  trial,  they  did  so,  not  on 
the  ground  that  the  ruling  was  wrong,  but  because  the  facts  were 
not  sufficiently  before  them.  Mr.  Justice  Burrough,  indeed,  felt  no 
difficulty  in  saying,  that,  if  the  plaintiff  was  in  court,  and  heard 
what  his  counsel  said,  and  made  no  objection,  he  was  bound  by  the 
statement;  but  the  other  learned  judges,  with  more  prudence, 
forebore  giving  any  opinion  on  a  question,  which  they  held  to  be 
one  of  great  nicety.  It  was  urged,  with  much  truth  at  least,  in 
support  of  the  judge's  ruling,  that  statements  made  by  counsel  in 
the  course  of  his  address  to  the  jury  are  often  no  other  than  embel- 


'  Harvey  v.  Croydon  Union,  &c.,  per  Ct.  of  App.  13  Feb.,  1884,  overruling 
S.  C,  as  decided  by  Pearson,  J.;  53  L.  J.,  Ch.  335.  L.  K.,  26  Ch.  D.  249; 
53  L.  J.,  Ch.  707,  S.  C. 

2  Stracy  v.  Blake,  1  M.  &  W.   1G8;  Doe  d.  Child  v.  Roe,   1  E.  &  B.    279. 

'  Bolton  V.  Sherman,  2  M.  &  W.  403,  per  Ld.  Abinger. 

*  Duncombe  v.  Daniell,  8  C.  &  P.  222,  227,  per  Ld.  Denman.  But  see 
Machell  v.  Ellis,  1  C.  &  Kir.  682. 

^3Bing.  119;  10  Moore,  431,  S.  C.  See  R.  v.  Coyle,  7  Cox,  74;  Haller 
r.  Worman,  2  Fost.  &  Fin.   165,  per  Keating,  J.     Sed  qu.  as  to  this  last  case. 

(3547) 


GSO     ADMISS.  in-  PRINCIPAL,  WHEN  EVID.  AGAINST  SURETY.    [PAET  II. 

lishments  of  the  imagination;  and  it  was  contended,  that,  as  bills 
in  equity  were  not  evidence  against  the  parties  who  tiled  them,  in- 
asmuch as  they  were  supposed  to  be  the  suggestions  of  counsel,  so 
the  speeches  of  barristers  should  clearly  be  rejected.  Should  these 
arguments  be  considered  inconclusive,  some  learned  members  of  the 
profession, — if  duly  watched, — will  often  save  their  adversaries  much 
trouble  in  the  way  of  proof.' 

§  785.^  The  admissions  of  a  princi2ml  can  seldom  bo  received  as  ?  "^10 
evidence  in  an  action  against  the  surety  upon  his  collateral  under- 
taking. In  these  cases  the  main  inquiry  is,  whether  the  declara- 
tions of  the  principal  were  made  during  the  transaction  of  the 
business  for  which  the  surety  was  bound,  so  as  to  become  part  of 
the  res  gestae.  If  so,  they  are  admissible;  otherwise,  they  are  not. 
The  surety  is  considered  as  bound  only  for  the  actual  condvict  of  the 
party,  and  not  for  whatever  he  might  say  he  had  done;  and  there- 
fore he  is  entitled  to  proof  of  the  principal's  conduct  by  original 
evidence,  where  it  can  be  had;  excluding  all  his  declarations  made 
subsequent  to  the  act  to  which  they  relate,  and  out  of  the  course  of 
his  official  duty.^  Thus,  where  one  guaranteed  the  payment  for 
such  goods  as  the  plaintiffs  should  send  to  another  in  the  way  of 
trade;  the  admissions  of  the  principal  debtor,  that  he  had  received 
goods,  made  after  the  time  of  their  supposed  delivery,  were  held 


'  As  to  the  authority  of  counsel  to  bind  a  client  by  a  compromise  or  agree- 
ment made  at  the  trial,  see  Swinfen  v.  Swinfeu,  25  L.  J.,  C  P.  303;  26  id. 
97;  1  Com.  B.,  N.  S.  364,  S.  C;  27  L.  J.,  Ch.  35,  coram  Eomilly,  M.  R., 
S.  C;  24  Beav.  549,  S.  C. ;  judg.  of  M.  R.  affd.  by  Lds.  Js.,  2  De  Gex  &  J. 
38;  27  L.  J.,  Ch.  491,  S.  C;  Chambers  v.  Mason,  5  Com.  B.,  N.  S.  59; 
Swinfen  v.  Ld.  Clielmsford,  5  H.  &  N.  890;  Tristwick  v.  Foley,  34  L.  J.,  C. 
P.  189;  S,  C.  nom.  Prestwich  v.  Poley,  18  Com.  B.,  N.  S.  80();  Strauss  v. 
Francis,  35  L.  J.,  Q.  B.  133;  1  Law  Rep.,  Q.  B.  379;  and  7  B.  &  S.  365, 
S.  C;  Brady  v.  Curran,  T.  R.,  2  C.  L.  314;  Holt  v.  Jesse,  L.  R.,  3  Ch. 
D.  177;  46  L.  J.,  Ch.  254,  S.  C;  Davis  v.  Davis,  L.  R.,  13  Ch.  D.  861,  per 
Fry,  J.;  49  L.  J.,  Ch.  241,  S.  C. 

'^  Gr.  Ev.   ?  187,  in  great  part. 

'  So,  in  the  ab.sence  of  special  agreement,  a  judgment  or  an  award  again.st 
a  principal  debtor  is  not  binding  on  the  surety,  and  is  not  evidence  against 
him  if  he  be  sued  by  the  creditor.  Ex.  p.  Young,  reKitchin,  L.  R.,  17  Ch.  D. 
668. 

(3548) 


CHAP.  XIV.]    ADMISS.  BY  PRINCirAL,  WHEN  EVID.  AGAINST  SURETY.    681 

inadmissible  in  evidence  against  the  surety.'  So,  if  a  man  become 
surety  in  a  bond,  conditioned  for  the  faithful  conduct  of  a  clerk  or 
collector,  confessions  of  embezzlement,  made  by  the  principal  after 
his  dismissal,  cannot  be  given  in  evidence  if  the  surety  be  sued  on 
the  bond;  ^  though  entries  made  by  the  principal  in  the  course  of 
his  duty,  or  whereby  he  has  charged  himself  with  the  receipt  of 
money,  will,  at  least  after  his  death,  be  received  as  proof  against 
the  surety.^ 


§  786.*  The  declarations  of  a  principal  may  possibly  be  evidence  ?  "1^ 
against  the  sui'ety,  in  a  case  where  the  latter,  being  sued  for  the 
default  of  the  former,  gives  him  notice  of  the  pendency  of  the  suit 
and  requests  him  to  defend  it;  for  here,  if  judgment  goes  against 
the  surety,  the  record  is  conclusive  evidence  for  him,  in  a  subse- 
quent action  against  the  principal  for  idemnity,  inasmuch  as  the 
principal  has  thus  xnrtually  become  a  party  to  the  suit.  This  view 
of  the  law  is  at  least  in  accordance  with  the  ruling  of  Lord  Kenyon, 
which  cannot  be  supported  on  any  other  ground.  A  sheriff  had 
brought  an  action  against  the  surety  of  his  baliff,  who  had  kept 
back  some  money  which  he  had  received;  and  his  lordship  held, 
that  a  wi'itten  admission  by  the  bailiff  of  the  receipt  of  this  money 
was  evidence  against  the  surety,  as  the  bailiff  was  substantially  the 
defendant  in  the  action.^ 

§  787.®  The  admissions  of  one  person  are  also  evidence  against    i  "712 
another,  in  respect  of   privity  between  them.     The  term  x^^'ivity 
denotes  mutual  or  successive  relationship  to  the  same  rights  of  pro- 


'  Evans   v.  Beattie,  5    Fsp.   26,  per   Ld.   Ellenborongh;  Bacon  ?'.   Chesney, 

1  Stark.  R.  192,  per  id.;  Longenecker.r.  Ifyde,  6  Binn.  1. 

'^  Smith  V.  Whittingliam,  G  C.  &  P.  78.  See,  also,  Cutler  r.  Newlin,  ]\rann. 
Dig.  N.  P.  137,  per  Holroyd,  J.;  Dunn  v.  Slee,  Holt,  N.  P.  R.  401;  Dawes 
V.  Shed,  15  Mass.  6,  9;  Foxoroft  v.  Nevens,  4  Greenl.  72;  Hayes  v.  Seaver, 
7  Greenl.  237;  Beall  v.  Back,  3  Har.  &  McHen.  242. 

*  Whitnash  v.  George,  8  B.  &  C.  556;  Middleton  v.  Melton,  10  B.  &  C.  317; 
Goss  V.  Watlington,  3   B.  &   B.  132;  6   Moore,  355,  S.  C;  M'Gahey  v.  Alston, 

2  M.  &  W.  213,  214.  *  Gr.  Ev.  §  188,  in  part. 
^  Perchard  r.  Tindall,  1  Esp.  394. 

«  Gr.  Ev.  I  189,  in  great  part. 

(3549) 


682  ADMISSIONS  BY  PRIVIES.  [PART  II. 

perty;  and  privies  are  distributed  in  several  classes,  acccording  to 
the  manner  of  this  relationship.  Thus,  there  are  privies  in  estate, 
— as,  donor  and  donee,  lessor  and  lessee,  joint-tenants,  and  succes- 
sive bishops,  rectors,  and  vicars:  privies  in  blood, — as,  heir  and 
ancestor,  and  coparceners;  i)rivies  in  representation, —  as,  executors 
and  testators,  administrators  and  intestates;  privies  in  law, — where 
the  law,  withoiat  privity  of  blood  or  estate,  takes  the  land  from  one 
and  bestows  it  upon  another,  as  by  escheat.  All  these  are  more 
generally  classed  into  privies  in  estate,  privies  in  blood,  and  privies 
in  law.^  The  ground,  upon  which  admissions  bind  those  in  privity 
with  the  party  making  them,  is,  that  they  are  identified  in  interest; 
and  of  course  the  rule  extends  no  further  than  this  identity.  The 
cases  of  coparceners,  and  of  joint  tenants,  are  assimilated  to  those 
of  joint  promissors,  partners,  and  others  having  a  joint  interest, 
which  have  already  been  considered."  In  other  cases,  where  the 
party  by  his  admissions  has  qualified  his  own  right,  and  another 
claims  to  succeed  him,  as  heii*,  executor,  or  the  like,  the  latter 
succeeds  only  to  the  right  as  thus  qualified  at  the  time  when  his 
title  commenced;  and  the  admissions  are  receivable  in  evidence 
against  the  representative,  in  the  same  manner  as  they  would  have 
been  against  the  party  represented  ^  Thus,  the  declarations  of  the 
ancestor,  that  he  held  the  land  as  the  tenant  of  a  third  person,  are 
admissible  to  show  the  seisin  of  that  person,  in  an  action  brought 
by  him  against  the  heir  for  the  land.^  And  the  declarations  of  an 
intestate  are  admissible  against  his  administrator,  or  any  other 
claiming  in  his  right ;^  but  it  has  been  held,  that  the  declarations 
of  an  executor,  though  made  while  he  was  acting  in  that  capacity, 
are  not  admissible  against  a  special  administrator,  who  has  been 
appointed  in  consequence  of  the  executor's  protracted  absence  from 
England." 


1  Co.  Lit.  271  a;  Carver  r.  Jackson,  4  Pet.  1,  83;  Wood,  Inst.  LL.  Eng. 
236;  Tomlin,  L.  Diet.  Verb.  Prides.  See  Walker's  case,  3  Co.  23;  Beverley's 
case,  4  Co.  123,  124;  ante,  g  90. 

2  Ante,  I  743. 

^  Coole  V.  Braham,  3  Ex.  R.  185,  per  Parke,  B. 

*  Doe  V.  Pettett,  5  B.  &  A.  223;  2  Poth.,  01)1.,  254;  ante,  H  G84— 687,  and 
cases  there  cited. 

5  Smith  r.  Smith,  3  Bing.  N.  C.  29;  7  C.  &  P.  401,  S.  C. 
^  Rush  V.  Peacuck,  2  M.  &  Rob.  162,  per  Ld.  Denman.     There  the  adminis- 

(3550) 


CHAP.  XIV.]  ADMISSIONS  BY  PRIVIES.  683 

§  788.'  Agaiu,  any  declaration  by  a  landlord,  in  a  prior  lease,  ^  713 
which  is  relative  to  the  matter  in  issue,  and  concerns  the  estate, 
has  been  received  in  evidence  against  a  lessee,  vyho  claims  by  a  sub- 
sequent title;"  and  admissions, — whether  evidenced  by  letters, 
receipts,  cases  drawn  for  the  opinion  of  counsel,  answers  in  Chan- 
cery, or  verbal  statements, — if  made  by  former  bishops,  rectors,  or 
vicars,  with  regard  to  their  several  rights,  will  be  evidence  against 
their  respective  successors,  in  all  cases  where  the  same  rights  are 
in  question.'^  So,  where  a  vicar  had  tiled  a  bill  against  his  rector 
and  certain  landowners  of  the  parish  for  tithe  hay,  and  had  subse- 
quently abandoned  the  suit,  the  defendants  in  their  answer  having 
declared  that  the  tithes  in  question  belonged  to  the  rector,  it  was 
held,  in  an  action  for  similar  tithes  brought  by  a  succeeding  rector 
against  owners,  who  had  purchased  their  lands  from  the  parties  to 
the  former  suit,  that  the  answer  was  strong  evidence  in  favour  of 
the  plaintiff.*  So,  ancient  maps,  books  of  survey,  and  the  like, 
though  mere  private  documents,  are  frequently  admissible  on  this 
ground,  where  a  privity  in  estate  exists  between  the  former  pro- 
prietor iinder  whose  direction  they  were  made,  and  the  present 
claimant  against  whom  they  are  offered.'^  The  declarations,  also, 
of  former  owners  or  occupiers,  i^ade  while  in  possession,  have  been 
admitted  as  evidence  of  the  nature  and  extent  of  their  title,  against 
those  claiming  in  privity  of  estate.® 

§  789.   The  question  how  far  the  admissions  of   tenants  may  be    §  714 


trator  was  appointed  under  the  Act  of  38  G.  3,  c.  87.  As  to  liow  far  pay- 
ments made  by  an  executor  de  son  tort  to  a  creditor  of  a  deceased  person  are 
binding  on  the  rightful  executor,  See  Thomson  v.  Harding,  2  E.  &  B.   630. 

1  Gr.  Ev.  §  189,  in  part. 

2  Crease  r.  Barrett,  1  C.  M.  &  R.  932.     See  Doe  v.  Seaton,  2  A.  &  E.  171. 

2  Bp.  of  Meath  v.  M.  of  Winchester,  3  Bing.  N.  C.  183  ;  Maddison  v. 
Nuttall,  6  Bing.  226;  3  M.  &  P.  544,  S.  C;  Doe  v.  Cole,  6  C.  &  P.  359,  per 
Patteson,  J.;  De  Whelpdale  r.  Milburn,  5  Price,  485;  Carr  v.  Mostyn,  5  Ex. 
R.  69. 

*  Lady  Dartmouth  r.  Roberts,  16  East,  334. 

5  Bridgman  v.  Jennings,  1  Ld.  Ray.  734;   B.  N.  P.  283,  a. 

6  Woolway  v.  Rowe,  1  A.  &  E.  114;  3  N.  &  M.  849,  S.  C. ;  Doe  v.  Austin, 
9  Bing.  41;  Davies  t).  Pierce.  2  T.  R.  53;  Doe  v.  Jones,  1  Camp.  367;  Jack- 
son V.  Bard,  4  Johns.  230,  234;  Norton  v.  Pettibone,  7  Conn.  319;  Weidman 
V.  Kohr,  4  Serg.  &  R.  174. 

(3551) 


CSi    AD.MIS6.  BY  TENANTS  WHEN  EVID.  AGAINST  LANDLORDS.  [PART  II. 

received  in  evidence  against  their  landlords  is  not  very  distinctly 
ascertained;  but,  although  in  one  case  at  Nisi  Prius  it  has  been 
held,  that  the  receipts  of  a  lessee  of  vicarial  tithes  were  evidence, 
in  proof  of  a  modus,  against  the  vicar,  by  a  reason  of  privity  between 
them; '  and  though  in  an  action  for  the  recovery  of  land,  the  ad- 
mission of  the  tenant  in  possession  will,  from  the  peculiar  nature  of 
the  proceedings,  be  evidence  against  one  who  oefends  as  landlord;^ 
yet  it  seems  that,  in  general,  the  naked  declarations  of  a  tenant  will 
not  be  evidence  against  the  reversioner;  ^  and  it  has  been  expressly 
held,  that  the  declarations  of  a  former  occupier  of  the  defendant's 
land  were  not  admissible  against  him,  on  an  issue  whether  the 
plaintiif  had  an  easement  in  such  land.* 

§  TOO.'*  The  same  principle  holds  in  regard  to  adTO!'ssi'o7?s  ??jade  6?/  g  715 
the  assignor  of  a  personal  contract  or  chattel  previous  to  the  assign- 
ment, where  the  assignee  must  recover  through  the  title  of  the 
assignor,  and  succeeds  only  to  that  title  as  it  stood  at  the  time  of 
its  transfer.  In  such  case,  he  is  bound  by  the  previous  admissions 
of  the  assignor  in  disparagement  of  his  own  apparent  title.  But 
this  is  true  only  where  an  identity  of  interest  exists  between  the 
assignor  and  assignee;  and  such  identity  is  deemed  to  exist,  not 
only  where  the  latter  is  either  expressly  or  impliedly  the  mere  agent 
and  representative  of  the  former,*'  but  also  where  the  assignee  has 
acquired  a  title  with  actual  notice  of  the  true  state  of  that  of  the 
assignor  as  qualified  by  the  admissions  in  question,  or  where  he  has 
purchased  a  demand  already  stale,  or  otherwise  infected  with  cir- 
cumstances of  suspicion. 


'  Jones  r.  Carrington,  1  C.  &  P.  329,  330,  per  Park,  J.  See,  also,  Illing- 
worth  V.  Leigh,  3  Gwill.  1615;  3  Eag.  &  Y.  1385,  S.  C. 

''  Doe  r.  Litherland,  4  A.  &  E.  784;  6  N.  &  M.  313,  S.  C.  See  Kules  of 
Sup.  Ct.,  1883,  Old.  XII.,  RR.  25,  26. 

^  Tickle  V.  Brown,  4  A.  &  E.  378,  per  Patteson,  J. 

*  Scholes  r.  Chadwick,  2  M.  &  Rob.  507,  per  Cresswell,  J.;  Papendick  v. 
Bridgwater,  5  E.  &  B.  166. 

"  Gr.  Ev.  ^  190,  almost  verhatim. 

*  AVelstead  v.  Levy,  1  M.  «&  Rol).  138  ;  Harrison  r.  Vallanoe,  1  Bing.  45: 
Gibblehouse  r.  Strong,  3  Rawle,  437;  Hatch  v.  Dennis,  1  Fairf.  244;  Snel- 
grove  V.  Martin,  2  M'C.  241,  243. 

(3552) 


CHAP.  XIV.]      ADMISSIONS  BY  rOR>[ER  HOLDERS  OF  BILLS.  685 

§  791.'  Thus,  in  an  action  by  the  indorsee  of  a  bill  or  note,  ^  716 
which  has  been  taken  by  the  plaintiff  after  it  was  due,  or  without 
consideration,  and  with  notice  of  fraud  in  its  original  concoction, 
the  declarations  of  the  indorser,  made  while  the  interest  was  in 
him,  are  admissible  in  evidence  for  the  defendant."^  But,  on  the 
other  hand,  the  declarations  of  a  former  holder  of  a  note,  showing 
that  it  was  given  without  consideration,  though  made  while  he  held 
the  note,  are  not  admissible  against  the  indorsee,  to  whom  the  in- 
strument has  been  transferred  on  good  consideration,  and  before  it  was 
overdue;  for  such  an  indorsee  derives  his  title  from  the  nature  of  the 
instrument  itself,  and  not  through  the  previous  holder;  and,  as  Mr. 
Justice  Parke  properly  observed,  "the  right  of  a  person,  holding 
by  a  good  title,  is  not  to  be  cut  down  by  the  acknowledgment  of  a 
former  holder,  that  he  had  no  title. "'^  In  applying  this  rule,  a  note 
payable  on  demand,  though  not  negotiated  for  some  time  after  its 
date,  will  not  on  that  account  be  treated  as  a  note  taken  by  an  in- 
dorsee when  overdue;  for  such  notes  are  intended  to  be  continuing 
securities,  and  may  circulate  for  years  without  exciting  suspicion.* 
IS^either  will  the  circumstance  that  the  declarations  of  the  prior 
holder  would,  if  received,  prove  his  fraud  in  connexion  with  the 
indorsee,  render  them  admissible  against  the  latter;  because  all 
preliminary  facts,  which  are  necessary  to  establish  the  admissi- 
bility of  evidence,  must  be  proved  aliunde,  before  such  evidence 
is  received.^ 


§  792.     The  case  of  Ivat  v.  Finch'^  appears  to  have  been  decided    ^  717 
partly  on  the  same  principle.     This  was  an  action  of  trespass  for 
taking  three  mares,  the  property  of  the  plaintiff.     The  defendant, 


1  Gr.  Ev.  ^  190,  in  part. 

■-'  Beaucliamp  v.  Parry,  1  B.  &  Ad.  89;  Peckham  v.  Potter,  1  C.  &  P.  232,  per 
Ld.  Gifibrd;  Benson  v.  Marshal,  cited  in  Shaw  v.  Broom,  4  D.  &  R.  7ol ;  Shirley 
V.  Todd,  9  Greenl.  83. 

*  Wool  way  i'.  Rowe,  1  A.  &  E.  116,  explaining  Barough  r.  White,  4  B.  &  C. 
325;  6  D.  &  R.  379,  S.  C. ;  Smith  v.  De  Wruitz,  Ry.  &  M.  212,  per  Abbott,  C. 
J. ;  Beauchamp  ?'.  Parry,  1  B.  &  Ad.  89. 

*  Barough  v.  White,  4  B.  &  C.  325;  Brooks  v.  Mitchell,  9  M.  &  W.  15. 

^  Phillips  V.  Cole,  10  A.  &  E.  106,  112;  2  P.  &  D.  288,  S.  C.     See  Heenan  v. 
Clements,  1  Ir.  Law  Rep.,  N.  S.  44. 
6  1  Taunt.  141. . 

(3553) 


GSG  ADMISSIONS  BY  PKIVIES.  [PART  II. 

who  was  lord  of  the  inauor,  justified  under  a  heriot  custom;  and 
the  sole  question  between  the  parties  was,  whether  one  Alice  "Watson, 
the  tenant,  Avas  possessed  of  the  mares  at  the  time  of  her  death. 
The  plaintiff  contended  that  she  had  given  them  to  him  some  time 
before,  and  tendered  in  evidence  her  declarations  to  that  effect. 
These  were  rejected  at  the  trial,  but  the  court  above  held  that  they 
were  admissible,  as  they  were  against  her  interest,  and  the  right  of 
the  lord  depended  upon  her  title.  But  where  the  fact  of  this  de- 
pendence is  not  directly  raised  by  the  issue,  such  declarations  will 
be  inadmissible;  and  therefore,  in  Stotherd  v.  James,'  where  an 
issue  was  directed  to  try  whether  goods  seized  in  A.'s  house  at  the 
suit  of  the  defendant  were  the  property  of  the  plaintiff,  the  declara- 
tions of  A.  respecting  the  property  were  rejected  as  evidence; 
because  on  that  narrow  issue  the  defendant  would  succeed,  whether 
the  goods  belonged  to  A.  or  to  any  other  person  besides  the  plaintiff. 
Had  the  issue  raised  the  question,  whether  the  goods  belonged  to 
A.  at  the  time  of  the  execution,  it  would  seem,  on  principle,  that 
his  declarations  made  before  the  seizure  would  have  been  evidence 
against  the  defendant;  though,  on  an  issue  similar  to  that  which 
was  raised  in  Stotherd  v.  James,  Mr.  Justice  AVightman  is  reported 
to  have  rejected  the  debtor's  admissions,  on  the  dubious  ground  that 
the  execution  creditor  claimed  adversely  to  him.^  In  the  case  of 
Coole  V.  Braham,^  the  Barons  of  the  Exchequer,  while  they  doubted 
the  doctrine  propounded  by  Mr.  Justice  AYightman,  and  intimated 
an  opinion  that,  in  an  interpleader  suit,  the  execution  creditor 
should  be  considered  as  claiming  under  the  debtor,  held  that  the 
admissions  of  the  debtor  would  only  be  evidence  against  the  execu- 
tion creditor,  when  they  qualified  or  affected  the  debtor's  title  to 
the  chattels  in  question;  and,  therefore,  on  an  interpleader  issue 
between  the  holder  of  a  bill  of  sale  and  the  execution  creditor, 
where  the  question  raised  was  the  usual  one  of  fraud  in  the  concoc- 
tion of  the  bill  of  sale,  the  court  determined  that  the  plaintiff  could 
not  support  the  genuineness  of  the  instrument,  by  giving  evidence 
of  an   admission  by  the    debtor  of  a    debt  due    from  him    to  the 


»  1  C.  «&  Kir.  121,  per  Maule,  J. 
2  Prosser  v.  Gwillim,  1  C.  &  Kir.  95. 
2  18  L.  J.,  Ex.  105;  3  Ex.  R.  183,  S.  C. 
(3554) 


chap.xivJadmiss.  by  declarant,  after  parting  with  interest.  687 

plaintifP,  though  such  admission  was  made  prior  to  the  assignment, 
it  having  also  been  made  in  the  absence  of  the  defendant. 


§  793.'  These  admissions  by  third  persons,  as  they  derive  their  ?  718 
legal  force  from  the  relation  of  the  party  making  them  to  the 
property  in  question,  may  be  proved  by  any  icitness  who  heard 
them,  without  calling  the  party  by  whom  they  were  made.  The 
question  is,  whether  he  made  the  admission,  and  not  merely 
whether  the  fact  is  as  he  admitted  it  to  be.  Its  truth,  where  the 
admission  is  not  conclusive, — and  it  seldom  is  so, — may  be  con- 
troverted by  other  testimony,  and  even  by  calling  the  party  him- 
self ;  but  it  is  not  necessary  to  produce  him,  for  his  declarations, 
when  admissible  at  all,  will  be  received  as  original  evidence,  and 
not  as  hearsay.^ 


§  794.  With  respect  to  the  time  and  circumstances  of  the  admis- 
sion it  may  first  be  observed,  that  whenever  the  declarations  of  a 
third  person  are  offered  in  evidence,  on  the  ground  that  the  party 
against  whom  they  are  tendered  derives  his  title  from  the  declarant, 
it  must  be  shown  that  they  were  made  at  a  time,  when  he  had  an 
interest  in  the  property  in  question;  because  it  is  manifestly 
unjust,  that  a  person  who  has  parted  with  his  interest  in  property, 
should  be  empowered  to  divest  the  right  of  another  claiming  under 
him,  by  any  statement  which  he  may  choose  to  make.^  Thus,  the 
admission  of  a  former  party  to  a  bill  of  exchange,  made  after  he 
has  negotiated  it,  cannot  under  any  circumstances  be  received 
against  the  holder  ;  ^  and  where  a  person  had,  by  a  voluntary 
postnuptial  settlement,  conveyed  away  his  interest  in  an  estate, 
and  afterwards  had  executed  a  mortgage  of  the  same  property,  it 
was  held,    that    his    admission    that    money    had    actually    been 


'  Gr.  Ev.  191,  almost  verbatim. 

^  Ante,  II  576,  602,  603,  and  cases  there  cited;  Wool  way  v.  Rowe,  1  A.  &  E. 
114;  3  N.  &  M.  849,  S.  C. ;  Brickell  v.  Hulse,  7  A.  &  E.  454. 

3  Doe  V.  Webber,  1  A.  &  E.  740,  per  Ld.  Denman;  Foster  v.  M'Mahon,  11  Ir. 
Eq.  R.  301;  Lalor  v.  Lalor,  4  L.  R.   Ir.   678. 

*  Pocock  V.  Billing,  2  Bing.  269  ;  Shaw  v.  Broom,  4  D.  &R.  730.  See  Roberts 
V.  Justice,  1  C.  &  Kir.  93. 

(3555) 


(19 


088  OFFERS    OF    COMPROMISE,    WHEN    AD3IISSIBLE.        [pART  II. 

advanced  upon  the  mortgage  could  not  be  received  on  behalf  of 
the  mortgagee,  who  was  seeking  to  set  aside  the  former  settle- 
ment as  voluntary  and  void.'  So,^  also,  the  declaration  of  a 
banki'upt,  though  good  evidence  to  charge  his  estate  with  a  debt, 
if  made  before  his  bankruptcy,  is  not  admissible  at  all,  if  it  were 
made  afterwards.^  This  most  just  and  equitable  doctrine  will 
be  found  to  apply  to  the  cases  of  vendor  and  vendee,  grantor  and 
grantee,  and,  generally,  to  all  cases  of  rights  acquired  in  good  faith 
previous  to  the  time  of  making  the  admission  in  question.* 

§  795.  It  will  here  be  convenient  to  repeat, — what  has  before  been  ^  720 
briefly  noticed,^ — that  confidential  overtures  of  pacification,  and  auy 
other  offers  or  propositions  between  litigating  parties,  expressly  or 
impliedly  made  tvifhoi.it  j)^'edjudice,  are  excluded  on  grounds  of 
public  policy.*^  For  without  this  protective  rule,  it  would  often 
be  difficult  to  take  any  steps  toward  an  amicable  compromise 
or  adjustment,  and  as  Lord  Mansfield  has  observed,  all  men 
must  be  permitted  to  buy  their  peace,  without  prejudice  to  them 
should  the  offer  not  succeed  ;  such  offers  being  made  to  stop 
litigation,  without  regard  to  the  question  whether  anything  is  due 
or  not.  If,  therefore,  the  defendant,  on  being  sued  for  lOOZ., 
should  offer  the  plaintiff  20^.,  and  at  the  same  time  state  that  such 
offer  was  made  "  without  prejudice,"  this  is  not  admissible  in  evi- 
dence, for  it  is  irrelevant  to  the  issue;  it  neither  admits  nor  ascer- 


1  Doe  V.  Webber,  1  A.  &  E.  733;  3  N.  &  M.  586,  S.  C;  Gully  v.  Bp.  of 
Exeter,  5  Bing.   171,  ^  Gr.  Ev.  §  180,  in  part. 

3  Bateman  v.  Bailey,  5  T.  R.  513;  Smith  v.  Simmes,  1  Esp.  330;  Deady 
V.  Harrison,  1  Stark.  R.  60.  See,  also,  Harwood  v.  Keys,  1  M.  &  Rob.  204,  and 
Kempland  v.  Macauley,  Pea.  R.  66,  per  Ld.  Kenyon. 

*  Welstead  v.  Levy,  1  M.  &  Rob.  138;  Bartlett  v.  Delprat,  4  Mass.  702,  70R 
Clark  v.  Waite,  12  Mass.  439;  Bridge  v.  Eggleston,  14  Mass.  245,  250,  251 
Phenix  v.  Ingraham,  5  Johns.  412;  Placker  v.  Gonsalus,  1  Serg.  &  R.  526 
Patton  r.  Goldsborough,  9  Serg.  &  R.  47;  Babb  v.  Clem.son,  12  Serg.  &  R.  328 
Crowder  c.   Hopkins,   10  Paige,  183;  Padgett  v.  Lawrence,  id.  180,  181. 

*  Ante,  §  774. 

«  Cory  V.  Bretton,  4  C.  &  P.  462,  per  Tindal,  C.  J. ;  Hcaley  v.  Thatcher, 
8  C.  &  P.  388  ;  Paddock  v.  Forrester,  3  Scott,  N.  R.  734  ;  3  M.  &  Gr.  903, 
S.  C. ;  Jardine  v.  Sheridan,  2.  &  Kir.  24;  Whiffcn  v.  Hardwright,  11  Beav. 
Ill;  Hoghton  v.  Hoghton,  15  Beav.  821,  Jones  v.  Foxall,  id.  388. 

(3556) 


CHAP.  XIV.]    OFFERS    OF    COMPROMISE,    WHEN    ADMISSIBLE.  689 

tains  any  debt,  and  is  no  more  than  saying  tbat  he  would  give  20Z, 
to  be  rid  of  the  action.'  So,  in  equity,  it  has  been  held,  that  the 
giving  of  a  small  sum  in  order  to  obtain  the  release  of  a  right, 
could  not  be  considered  as  an  acknowledgment  that  a  right 
existed  ;  it  amounts  only  to  this — "  I  give  you  so  much  for  not 
seeking  to  disturb  me."  "  Perhaps,  also,  an  offer  of  compromise, 
the  essence  of  which  is  that  the  party  making  it  is  willing  to 
submit  to  a  sacrifice,  or  to  make  a  concession,"^  will  be  rejected, 
though  nothing  at  the  time  was  expressly  said  respecting  its  con- 
fidential character,  if  it  clearly  appear  to  have  been  made  under 
the  faith  of  a  pending  treaty,  into  which  the  party  has  been  led 
by  the  confidence  of  an  arrangement  being  afFected  ;  *  though,  in 
this  case,  if  the  admission  be  merely  of  a  collateral  or  indiffei-ent 
fact,  such  as  the  handwriting  of  a  party,  which  is  capable  of  easy 
proof  by  other  means,  and  is  not  connected  with  the  substantial 
merits  of  the  cause,  it  will  be  received.^  The  American  courts 
have  held,  that  evidence  of  the  admission  of  any  independent  fact 
is  receivable,  though  made  during  a  treaty  of  compromise.^ 


§  796.  In  the  absence  of  any  express,  or  strongly  implied,  ^  721 
restriction  as  to  confidence,  an  offer  of  compromise  is  clearly 
admissible  as  some  evidence  of  liability  ; '  and  although  the  offer 
of  a  less  sum  than  the  amount  demanded  will  not,  in  general, 
support  a  count  on  an  account  stated,  since  it  may  be  a  mere 
offer  to  purchase  peace  ;  ^ — nor,  perhaps,  will  an  offer  by  the 
drawer  of  a  bill,  who  is  threatened  with  legal  proceedings  upon 
it,  to  give  another  bill  by  way  of  settlement,  obviate  the  necessity 
of  proving  at  the   trial  that  he  has   received  due  notice  of  dis- 


1  B.  N.  P.  23G,  h. 

2  Underwood  v.  Ld.  Courtown,  2  Sch.  &  Lef.  67,  68,  per  Ld.  Eedesdale. 

3  Thomson  v.  Austen,  2  D.  &  R.  361,  per  Bayley,  J. 

*  "Waldridge  r.  Kennison,  1  Esp.  144,  per  Ld.  Kenyon.  ^  Id. 

®  Mounts.  Bogert,  Antlion,  190,  per  Thompson,  C.  J.;  Murray  v.  Coster, 
4  Coweu,  635  ;  Fuller  r.  Hampton,  5  Conn.  416,  426  ;  Sanborn  v.  Neilson, 
4  New  Hamps.  R   501,  508,  509  ;  Delogny  v.  Rentoul,  1  Mart.  175. 

'  Wallace  v.  Small,  M.  &  M.  446,  per  Ld.  Tenterden  ;  Watts  v.  Lawson,  id. 
447,  n.,  per  id.;  Nicholson  v.  Smith,  3  Stark.  R.  129,  per  id. 

8  Wayman  v.  Hilliard,  7  Bing.  101  ;  4  M.  &  P.  729,  S.  C. 

(3557) 


690  OFFERS    OF    COMPROMISE,    WHEN    ADMISSIBLE.        [PART   II, 

honour  ; '  yet  there  are  occasions, — as,  for  instance,  if  the  drawer 
of  a  bill,  whose  signature  is  in  issue,  has  proposed  a  settlement, — 
when  the  fact  of  an  offer  having  been  made  may  be  entitled 
to  considerable  weight."  In  the  case  of  Thomas  v.  Morgan,^ 
however,  where  the  defendant  was  sued  for  keeping  mischievous 
dogs,  which  had  killed  three  of  the  plaintiff's  cattle,  and  it 
appeared  that  on  being  told  of  the  injury  done  by  them  he  had 
offered  to  settle  for  it,  the  court  held,  that  though  this  was  a 
fact,  which  in  strictness  should  have  been  submitted  to  the  jury 
as  evidence  of  the  scienter,*  it  was  entitled  to  little,  if  any,  weight, 
"  as  it  might  have  been  made  from  motives  of  charity  without 
any  admission  of  liability  at  all."  They  therefore  refused  a  new 
trial,  though  the  question,  whether  the  offer  of  compromise  was 
not  an  admission  of  the  defendant's  liability,  had  not  in  point 
of  fact  been  left  to  the  jury,  the  attention  of  the  judge  at  Nisi 
Prius  not  having  been  drawn  to  that  particular  point.  After  what 
has  been  said  above,  authorities  need  scarcely  be  cited  to  show, 
that  admissions  made  before  an  arbitrator  are  receivable  in  a  sub- 
sequent trial  of  the  cause,  the  reference  having  proved  ineffectual.^ 

§  797.  Before  leaving  this  subject  one  word  of  caution  may   be    §  "22 
added  respecting  a   man's   purchasing  peace,  where  his  conduct, 
though  strictly  upright  and  honourable,  may   be  subjected  to  mis- 


'  Cuming  v.  French,  2  Camp.  106,  n.,  per  Ld.  Ellenborongh.     See,  post,  §  806. 

^  Harding  r.  Jones,  Tyr.  &  Gr.  135. 

•■*  2  C.  M.  &  R.  496  ;  5  Tyr.  1085,  S.  C.  See,  however,  Sayers  v.  Walsh,  12 
Ir.  Law  R.  435. 

*  The  absurd  doctrine  of  "  scienter,"  as  applicable  to  mischievous  dogs,  no 
longer  prevails  in  its  entirety ;  though  the  law,  notwithstanding  lour  legis- 
lative attempts  at  amendment,  still  continues  in  a  most  unsatisfactory  state. 
In  Ireland,  "  the  owner  of  every  dog  is  liable  in  damages  for  injury  done  to 
any  sheep  by  his  dog,"  whether  such  dog  be  mischievous  or  not ;  25  &  26  V., 
c.  59,  ^  1,  Ir.  See,  also,  28  &  29  V.,  c.  50,  Ir.  A  somcAvhat  similar  amend- 
ment of  the  law  has  been  introduced  into  England  and  Scotland,  and  has  been 
extended  in  these  countries  to  injuries  cau-sed  by  dogs  to  sheep  or  cattle;  26 
&  27  v.,  c.  100,  §  1,  Sc;  28  &  29  V.,  c.  60.  The  word  "cattle"  here  used, 
includes  horses,  Wright  v.  Pearson,  4  Law  Rep.,  Q.  B.  582  ;  38  L.  J.,  Q.  B.  312; 
10  B.  &  S.  723,  S.  C. 

s  Greg(jry  v.  Howard,  3  Esp.  113,  per  Ld.  Kenyon  ;  Slack  v.  Buchannan,  Pea. 
E.  5,  per  id. 

(3558) 


CHAP.  XIV.]  ADMISSIONS  MADE  UNDER  CONSTRAINT.  691 

interpretation.  Such  a  course  is  always  pusillanimous,  seldom 
gains  its  immediate  object,  and,  if  it  fails,  may  be  productive  of 
irreparable  injury  to  character.  The  council  of  a  man  who  has 
once  lent  himself  to  such  an  arrangement,  may  feebly  urge  that 
he  was  actuated  by  motives  of  charity  and  benevolence ;  but  the 
opponent  will  more  loudly  and  successfully  contend  that  his 
behaviour  amounts  to  proof  of  a  consciousness  of  misconduct; 
and  the  judge,  while  he  rejects  both  these  interpretations,  will 
perform  no  easy  task,  should  he  induce  the  jury  to  ascribe  it  to 
the  infirmity  of  one,  who  was  reluctant  to  have  his  character  and 
conduct  questioned,  and  his  name  bandied  about  in  the  public 
papers.  "Let  this  action,"  said  Lord  Ellenborough,- — when  Sir 
William  Scott  was  sued  for  illegally  excommunicating  one 
Beaurain,  whose  animosity  he  had  endeavoured  to  stifle  by  a 
gift, — "  Let  this  action  be  a  lesson  for  all  men  to  stand  boldly 
forward — to  stand  on  their  characters — and  not,  by  compro- 
mising a  present  difficulty,  to  accumulate  imputations  on  their 
honour.' 

§  798.^  In  regard  to  admissions  made  under  circumstances  of  ^  ^^^' 
constraint,  the  rule  of  law  is  this,  that  they  cannot  be  received 
when  obtained  by  illegal  duress  f  but  that  they  are  admissible, 
at  least  on  the  trial  of  civil  actions,*  if  the  compulsion  under 
which  they  were  made  was  legal.  Thus  affidavits  sworn  by  a 
party  in  former  legal  proceedings,  answers  filed  by  him  in 
Chancery  in  a  former  suit,  evidence  given  by  him  in  an  action 
at  law,  or  his  examination  taken  in  bankruptcy,  will  be  evidence 
against  himself  in  a  subsequent  cause  ;  and  this,  too,  though 
his  subsequent  opponent  was  a  stranger  to  the  prior  proceed- 
ing,^— though  he  himself  might,  had  he  thought  fit,  have  success- 


'  Ld.  Eldon's  Life,  by  Twiss,  vol.  ii.,  pp.  233—235,  2nd  ed. 

-  Gr.  Ev.  §  193,  in  part. 

'  Stockfleth  V.  De  Tastet,  4  Camp.  11,  per  Ld.  Ellenborough  ;  Robson  v. 
Alexander,  1  M.  &  P.  448.  As  to  what  questions  a  witness  may  refuse  to 
answer,  see  post,  ?  1453,  et  seq. 

*  As  to  their  admissibility  in  criminal  proceedings,  see  post,  ?.?  895 — 899. 

*  Grant  v.  Jackson,  Pea.  R.  203,  per  Ld.  Kenyon  ;  Ashmore  v.  Hardy,  7 
C.  &  P.  501,  504,  per  Patteson,  J. 

23  LAW  OF  EVID.— V.  II.  (3559) 


692  ADMISSIONS  MADE  UNDER  CONSTRAINT.  [pART  II. 

fully  demurred  to  the  questions,' — though  they  were  irrelevant 
to  the  matter  before  the  court  at  the  time  of  his  examination, 
and  were  put  to  him  for  the  purpose  of  procuring  evidence  in 
an  action  depending  against  him,^ — and  though  he  had  no  op- 
portunity of  fully  explaining  the  testimony  he  had  given.  This 
last  point  may  be  illustrated  by  the  case  of  Collett  v.  Lord 
Keith,''  where  in  an  action  for  taking  the  plaintiff's  ship,  the 
testimony  of  the  defendant,  given  as  a  witness  in  an  action 
between  other  parties,  in  which  he  admitted  the  taking  of  the 
ship,  was  allowed  to  be  proved  against  him  ;  though  it  appeared 
that,  in  giving  his  evidence,  when  he  was  proceeding  to  state  his 
reasons  for  taking  the  ship,  the  judge  had  stopped  him  by  saying 
that  it  was  unnecessary  for  him  to  vindicate  his  conduct.  The 
manner  in  which  the  evidence  had  been  obtained  was  matter  of 
observation  to  the  jury ;  but  as  what  was  said  bore  directly  on 
the  issue,  it  could  not  be  excluded  as  evidence  of  the  fact.  So, 
where  a  defendant  had  been  examined  before  commissioners  of 
bankrupts,  and,  though  the  whole  of  what  he  said  had  not  been 
taken  down,  the  portion  that  was  reduced  to  writing  had  been  read 
over  and  signed  by  him,  this  was  held  to  be  receivable  against  him 
as  a  statement  of  facts,  the  truth  of  which  he  had  admitted.* 

§  799.  It  has  been  said  that  an  admission,  -  obtained  under  a  i  '^24 
compulsory  examination,  will  not  be  evidence  of  an  account 
stated;  but  the  case  in  which  this  point  arose,  probably  rests  on 
the  ground  that  the  admission  was  there  made  to  a  third  party,^ 
while  to  support  an  account  stated  the  admission  must  be  made, 
either  to  the  person  to  whom  the  money  is  owing,  or  to  some  one 
sent  by  him.*^     If,  therefore,   the  admission  were  contained  in  an 


1  Smith  V.  Beadnell,  1  Camp.  30,  33,  per  Ld.  Ellenborough. 

"^  Stockfleth  V.  De  Tastet,  4  Camp.  10.  If  the  commission  has  been  per- 
verted to  improper  pm-poses,  the  remedy  is  by  an  application  to  have  the 
examination  taken  from  the  files  and  cancelled,  id.  11,  per  Ld.  Ellenborough. 

3  4  Esp.  212,  per  Le  Blanc,  J. 

*  Mihvard  v.  Forbes,  4  Esp.  171,  per  Ld.  Ellenborough. 

5  Tucker  v.  Barrow,  7  B.  &  C.  G25,  per  Littledale,  J. ;  3  C.  &  P.  90  ;  1  M. 
&  R.  518,  .S.  C. 

6  Breckon  v.  Smith,  1  A.  &  E.  488 ;  Bates  v.  Townley,  2  Ex.  R.  156,  157. 

(3560) 


CHAP.  XIV.]      NATURE  OF  ADMISSIONS — DIRECT — INCIDENTAL.  693 

answer  to  interrogatories,  which  is  clearly  an  answer  to  the  plaintiff 
in  the  suit,  it  would  most  probably  be  regarded  as  good  evidence  of 
an  account  stated.' 


§  800.^  Passing  now  to  a  consideration  of  the  nature  of  ad-  ^  ^^^ 
missions,  it  may  be  observed  that  no  difference  exists,  in  regard 
to  their  inadmissibility,  between  direct  admissions,  and  those 
which  are  incidental,  or  made  in  some  other  connexion,  or  in- 
volved in  the  admission  of  some  other  fact.  One  or  two  cases 
illustrative  of  this  rule  have  already  been  noticed,  while  treating 
of  admissions  made  by  solicitors;'  but  it  may  here  be  added, 
that  in  an  action  by  the  assignees  of  a  bankrupt  against  an 
auctioneer,  to  recover  the  proceeds  of  a  sale  of  the  bankrupt's 
goods,  the  defendant's  advertisement  of  the  sale,  in  which  he 
described  the  goods  as  "the  property  of  D.,  a  bankrupt,"  was 
held  to  be  a  conclusive  admission  that  D.  was  a  bankrupt,  and 
that  the  defendant  was  acting  under  his  assignees.*  So,  where  a 
party,  with  a  view  of  suing  out  a  commission  of  bankruptcy 
against  a  trader,  made  an  affidavit  that  the  trader  owed  him  100 Z., 
and  was  become  banki'upt,  he  was  not  allowed  afterwards  to 
dispute  the  bankruptcy,  when  he  was  himself  sued  in  trover  by 
the  assignees  of  the  bankrupt,  appointed  under  a  second  com- 
mission, for  the  price  of  some  flour  which  he  had  clandestinely 
received  from  the  trader,  and  applied  to  the  dischage  of  his  own 
debt.' 

§  801.®  Other  admissions  are  implied  from  assumed  character;    I  726 
for,  whenever   the   existence    of   any  domestic,    social,    or  official 
relation  is  in  issue,  any  recognition,  whether  by  word  or  deed,  of 
that  relation,  is  prima  facie  evidence  of  its  existence,  as  against 
the  person  making  such  recognition.'     This  rule  is  more  frequently 


'  See  Bates  v.  Townley,  2  Ex.  R.  157,  per  Alderson,  B. 

2  Gr.  Ev.  I  194,  in  part.  ^  Ante,  ?  773. 

*  Maltby  i;.  Christie,  1  Esp.  342,  as  explained  by  Ld.  Ellenborough  in  Rankin 
V.  Horner,  16  East,  193. 

5  Ledbetter  v.  Salt,  4  Bing.  623;  Harmer  v.  Davis,  7  Taunt.  577.     See  post, 
?  856,  ad  fin.  •*  Gr.  Ev.  §  195,  in  part. 

'  Dickinson  v.  Coward,  1  B.  &  A.  677,  679,  per  Ld.  Ellenborough;  recognised 
by  Ld.  Lyndhurst  in  Inglis  v.  Spence,  1  C.  M.  &  R.  436. 

(3561) 


694  ADMISSION  IMPLIED  FROM  ASSUMED  CHARACTER.       [PART  II. 

applied  against  a  person,  who  has  recognised  the  character  or 
office  of  another;  but  it  embraces,  in  its  principle,  any  repre- 
sentation or  language  in  regard  to  himself.  Thus, — to  illustrate 
the  second  branch  of  the  rule  first,^-"where  one  has  assumed  to 
act  in  an  official  character,  this  is  an  admission  of  his  appoint- 
ment or  title  to  the  office,  so  far  as  to  render  him  liable,  even 
criminally,  for  misconduct  or  neglect  in  such  office.'  This  doc- 
trine has  been  held  to  apply,  among  other  eases,  to  actions  or 
prosecutions  against  clergymen,  for  non  residence;"  against  military 
officers,  for  returning  false  musters;^  against  popish  priests,  for 
remaining  forty  days  within  the  kingdom,  when  this  was  con- 
sidered an  offence  of  no  less  magnitude  than  high  treason;*  against 
letter-carriers,  for  embezzlement;^  and  against  solicitors,"  toll- 
gatherers,'  and  collectors,  for  penalties.* 


§  802.  So, — under  the  first  branch  of  the  rule, — where  one  has  I  727 
recognised  the  official  character  of  another,  by  treating  with  him 
in  such  character  or  otherwise,  this  is  at  least  prima  facie  evidence 
of  his  title  against  the  party  thus  recognising  it."  For  instance, 
where  a  person  had  received  credit  from  the  renter  of  turnpike 
tolls,  and  had  afterwards  accounted  with  him  in  that  character, 
and  made  him  a  partial  payment,  he  was  not  permitted  to  question 
the  legality  of  his  appointment; '"  and  where  a  farmer- general  of 
post  horse  duties  brought  an  action  for  certain  statute  penalties 
against  a  person  who  let  out  horses  for  hire,  proof  of  his  appoint- 
ment was  waived,  the  defendant  having  previously  accounted  with 


>  See  ante,  I  171. 

2  Sevan  v.  Williams,  3  T.  R.  635,  a,  per  Ld.  Mansfield. 

'  R.  V.  Gardner,  2  Camp.  513,  per  Ld.  Ellenborough. 

*  R.  V.  Kerne,  7  How.  St.  Tr.  714;  R.  v.  Brommich,  id.  722;  R.  v.  Atkins, 
id.  728.  The  Act  of  27  El.,  c.  2,  under  which  these  poor  wretches  were  tried, 
is  now  repealed  by  7  &  8  V.,  c.  102. 

*  R.  V.  Borrett,  6  C.  &  P.  124,  per  Littledale  and  Bosanquet,  Js.,  and  Bol- 
land,  B.  The  prisoner  was  indicted  under  2  W.  4,  c.  4,  now  repealed  by  24  & 
25  v.,  c.  95. 

*  Cross  V.  Kaye,  6  T.  R.  663. 

'  Trowbridge  v.  Baker,  1  Cowen,  251. 

*  Lister  v.  Priestly,  Wightw.  67. 

9  Peacock  v.  Harris,  10  East,  104.  1°  See  ante,  H  173—175. 

(3562) 


CHAP.  XIY.]    RECOGNITION  OF  OFFICIAL  CHARACTER  OF  OTHERS.         695 

him  as  farmer-general.'  So,  the  clerk  of  the  trustees  of  a  turn- 
pike road  has  not  been  allowed  to  show,  that  a  person  who  had 
acted  as  one  of  the  trustees,  and  had  been  treated  as  such  by 
himself,  while  clerk,  was  not  duly  qualified; "  and  in  an  action  by 
the  trustee  of  a  bankrupt  against  a  debtor,  who  has  made  him 
a  partial  payment,^  or  has  acknowledged  his  title  in  letters  to 
the  solicitor  under  the  bankruptcy,*  the  plaintiff  need  not  prove 
his  title  as  trustee,  though  notice  to  dispute  it  has  been  given. 
Again,  where  a  solicitor  brought  an  action  against  a  defendant  for 
defamation,  in  charging  him  with  swindling,  and  threatening  to 
have  him  struck  off  the  rolls,  this  threat  was  held  to  imply  an  ad- 
mission that  the  plaintiff  was  a  solicitor;  ^  and  in  a  similar  action 
brought  by  a  physician,  where  the  plaintiff  was  spoken  of  as 
"Doctor  L.,"  and  the  defendant,  who  was  an  apothecary,  had  made 
up  medicines  prescribed  by  him,  the  Court  of  Common  Pleas  was 
equally  divided  upon  the  question,  whether  the  defendant's  words 
and  conduct  amounted  to  an  acknowledgment  of  the  plaintiff's 
character.^  In  actions  of  this  kind,  however,  if  the  words  com- 
plained of  charge  a  want  of  qualification  and  not  mere  miscon- 
duct, the  plaintiff  must  prove  that  he  possesses  the  character 
which  has  been  impugned,  for  the  slander  in  such  case  does  not 
admit  it.^ 

§  803.    The   case   of    Lipscombe    v.   Holmes^    affords    a    good    §  728 
example   of   both   branches   of   the   rule  in  question^     That  was 
an  action  for  work  and  labour  as    a  surgeon  ;    and  the   defence 
was  that  the  plaintiff  was   a  physician,  and  therefore  incapable,  by 
the  law  then  in  force,"  of  maintaining   an  action  for  fees.     It  was 


1  Radford  v.  M'Intosh,  3  T.  R.  632. 

2  Pritchard  v.  Walker,  3  C.  &  P.  212,  per  Vaughan,  B. 

3  Dickinson  v.  Coward,  1  B.  &  A.  677. 

*  Inglis  V.  Spenee,  1  C.  M.  &  R.  432;  Crofton  v.  Poole,  1  B.  &  Ad.  561. 

*  Berryman  v.  Wise,  4  T.  R.  366. 

«  Smith  V.  Taylor,  1  N.  R.  166;  Sir  J.  Mansfield,  and  Heath,  J.,  aflf.,  Rooke 
and  Chambre,  Js.,  neg. 

'  Id.  207;  Collins  v.  Carnegie,  1  A.  &  E.  703,  per  Ld.  Denman. 

*  2  Camp.  441.     See  further  on  this  subject,    R.   v.  Barnes,   1  Stark.  R.  243; 
Cummin  r.  Smith,  2  Serg.  &  R.  440;  Divoll  v.  Leadbetter,  4  Pick.  220. 

9  See  now  21  &  22  V.,   c.   90,  I  31;  Gibbon  v.  Budd,   32  L.  J.,  Ex.  182,  2 

(3563) 


G96  ADMISSIONS  IMPLIED  FROM  CONDUCT.  [PABT  II. 

sliown  that  he  had  written  prescriptions  and  signed  himself  M.  D., 
upon  which  Lord  Ellenborough  was  on  the  point  of  nonsuiting 
him,  saying  that  "  if  a  person  passes  himself  off  as  a  physician, 
he  must  take  the  character  cum  onere."  It  appearing,  however, 
that  the  defendant  had  paid  money  into  court,  his  lordship  thought 
that  this  act  removed  the  objection,  being  tantamount  to  an 
admission  of  the  plaintiff's  right  to  sue  as  a  surgeon. 

§  804.^  Admissions  implied  from  the  conduct  of  the  party  are  i  729 
governed  by  the  same  principles;  and  although  this  class  of  ad- 
missions has  already  been  adverted  to,  while  treating  of  the  law 
of  presumptions,^  it  deserves  further  illustration  in  this  place. 
Thus,  an  attempt  by  a  plaintiff'  to  suborn  false  witnesses  is  cogent 
evidence,  in  the  nature  of  an  admission  by  conduct,  that  his  cause 
is  an  unrighteous  one.^  So,  the  suppression  of  documents  is  an 
admission  that  the  contents  were  deemed  unfavourable  to  the 
party  suppressing  them.*  The  entry  of  a  charge  to  a  particular 
person  in  a  tradesman's  book,  or  the  making  out  of  a  bill  of 
parcels  in  his  name,  is  an  admission  that  the  goods  were  furnished 
on  his  credit.^  The  delivery,  too,  by  a  tradesman,  of  an  invoice 
or  account  in  which  goods  are  described  as  bought  from  him,  is 
strong,  but  not  conclusive  evidence,  that  he  was  the  real  vendor.® 
The  H)mission  of  a  claim  by  an  insolvent  in  a  schedule  of  the 
debts  due  to  him  given  on  oath,  is  an  admission  that  it  is  not 
due;  though  whether  it   amounts  to   a  conclusive  admission  may 

H.  &  C.  92,  S.  C. ;  and  by-law  by  the  Royal  College  of  Physicians,  that  no 
Fellow  of  the  Coll.  shall  be  entitled  to  sue  for  fees.  This  by-law,  it  will  be 
observed,  does  not  extend  to  ordinary  members  of  the  Coll.,  and  such  persons 
may  now  sue  by  virtue  of  the  Medical  Act. 

'  Gr.  Ev.  ^  196,  in  part.  ^  ^nte,  U  107,  116,  117,  178,  555. 

^  Moriarty  v.  Lond.  Chat.  &  D.  Ey.  Co.,  39  L.  J.,  Q.  B.  109;  5  Law  Rep., 
Q.  B.  314,  S.  C. 

*  James  v.  Biou,  and  Owen  v.  Flack,  2  Sim.  &  St.  606,  607;  Bell  v.  Frankis, 
4  M.  &  Gr.  446;  Curlewis  i-.  Corfield,  1  Q.  B.  814;  1  G.  &  D.  489,  S.  C; 
Clifton  V.  U.  S.,  4  Howard,  S.  Ct.  R.  242;  R.  v.  Lond.  Bright.  &  S.  Coast  Ry. 
Co.,  20  L.  J.,  M.  C.  145,  per  Coleridge,  J.;  Sutton  v.  Devonport,  27  L.  J.,  C.  P. 
54;  Edmonds  t;.  Foster,  45  L.  J.,  C.  P.  41. 

^  Storr  V.  Scott,  6  C.  &  P.  241,  per  Ld.  Lyndhurst.  See  Thomson  v.  Daven- 
port, 9  B.  &  C.  78,  86,  90,  91. 

«  Holding  r.  Elliott,  29  L.  J.,  Ex.  134;  5  H.  &  N.  117,  S.  C.  See  post, 
§  1153. 

(3564) 


CHAP.  XIV.]  ADMISSIONS  IMPLIED  FROM  CONDUCT.  G97 

be  a  question  of  some  doubt. ^  Payment  of  money  is  an  admis- 
sion against  tlie  payer,  that  the  receiver  is  the  proper  person  to 
receive  it  ;  but  not  against  the  receiver,  that  the  payer  was 
the  person  who  was  bound  to  pay  it  ;  for  the  party  receiving 
payment  of  a  just  demand  may  well  assume,  without  inquiry,  that 
the  party  tendering  the  money  was  the  person  legally  bound  to 
pay  it." 

§  805.  Relief  given  at  various  times  to  a  pauper  while  residing  ?  '^:>o 
in  another  parish,  is  cogent,  though  not  conclusive,  evidence  that 
he  is  settled  in  the  relieving  parish;^  and  even  a  single  instance  of 
such  relief  having  been  given  will  warrant  a  similar  conclusion.* 
Of  course  the  effect  of  such  evidence  will  be  much  stronger,  if  the 
examination  states  a  distinct  head  of  settlement  in  the  relieving 
parish,  though  the  technical  proof  may  fail  to  establish  it  satisfac- 
torily.^ On  the  other  hand,  the  relief  of  a  pauper,  while  residing 
in  the  relieving  parish,  is  no  evidence  whatever  of  a  settlement, 
however  frequently  it  may  have  been  bestowed;®  but  this  rule  rests, 
not  so  much  on  the  absence  of  any  presumption  deducible  from  the 
conduct  of  the  relieving  parish,  as  on  the  impolicy  of  permitting 
such  evidence  to  have  any  weight  ;  for  if  parochial  officers,  by 
giving  relief  to  a  pauper,  were  to  make  evidence  against  themselves 


^  In  Nicholls  v.  Downes,  1  M.  &  Rob.  13,  Ld.  Tenterden  held  it  to  be  con- 
clusive, apparently  questioning  Hart  v.  Newman,  3  Camp.  13,  where  Ld. 
Ellenborough  treated  it  as  entitled  to  little  weight.  See  Tilghman  v.  Fisher, 
9  Watts,  441. 

^  James  v.  Biou,  2  Sim.  &  St.  606;  Chapman  v.  Beard,  3  Anstr.  942. 

3  R.  V.  Barnsley,  1  M.  &  Sel.  377,  380,  per  Ld.  Ellenborough;  R.  v.  Wake- 
field, 5  East,  335;  R.  v.  Stanley  cum  Wrenthorpe,  15  East,  350;  R.  v.  East 
Winch,  12  A.  &  E.  697;  R.  v.  Yarwell,  9  B.  &  C.  894;  4  M.  &  R.  685,  S.  C; 
R.  V.  Carnarvonshire,  Js.,  2  Q.  B.  325.  Formerly  the  relief  must  have  been 
given  by  the  churchwardens  and  overseers  in  order  to  furnish  evidence  against 
the  parish,  but  the  board  of  guardians  now  represent  for  this  piirpose  every 
parish  within  the  union.  See  R.  v.  Crondall,  2  Sess.  Cas.  667;  10  Q.  B. 
812,  S.  C. ;  and  the  clerk  to  the  guardians  represents  the  board;  R.  v.  Wigan, 
14  Q.  B.  287. 

*  R.  V.  Edwinstowe,  8  B.  &  C.  671 . 

^  R.  V.  Bedingham,  1  Sess.  Cas.  114,  per  Ld.  Denman. 

«  R.  V.  Chatham,  8  East,  498;  R.  v.  Trowbridge,  7  B.  &  C.  252  ;  1  M.  & 
R.  7,  S.  C;  R.  V.  Coleorton,  1  B.  &  Ad.  25;  R.  v.  St.  Giles-in-the-Fields,  5 
Q.  B.  872. 

(3565) 


698  ADMISSIONS  IMPLIED  FROM  CONDUCT.  [PAET  II. 

as  to  bis  settlement  in  their  parish,  they  would  perform  their  duty 
to  casual  poor  with  great  reluctance.' 


§  806.  A  distinct  promise  by  the  drawer  to  pay,  or  indeed  any  §  731 
acknowledgment  by  him  or  liability  upon,  a  dishonoured  bill, — as, 
for  example,  the  suffering  judgment  by  default  in  a  prior  action, 
brought  by  a  former  holder  of  the  instrument, — will  raise  an  in- 
ference that  he  has  either  received  or  waived  due  notice  of  dishonour,^ 
and,  in  the  case  of  a  foreign  bill,  that  it  has  been  duly  protested;' 
and  a  jury  will  be  justified  in  coming  to  the  same  conclusion  on 
less  positive  evidence;  as,  for  instance,  if  the  drawer,  in  disclaiming 
liability  when  threatened  with  an  action,  did  not  rest  his  defence 
on  the  want  of  notice,  but  on  some  different  ground.*  The  maxim, 
expressum  facit  cessare  tacitum,  will  here  raise  a  presumption,  which 
a  defendant  may  find  it  difficult  to  rebut.  The  suing,^  or  distraining,® 
for  rent  accruing  due  since  a  forfeiture  of  which  the  lessor  has  had 
notice,  as  also  the  acceptance  of  such  rent,'  and,  perhaps,  even  the 

mere  demand  of  it,*  will, — unless  an  action  to  recover  the  property 

■ • • 

.     ^  R.  V.  Chatham,    8   East,  501,  per   Ld.  Ellenborough ;  R.    v.  Coleorton,  1 
B.  &  Ad.  27,  per  Bayley,  J. 

2  Rabey  v.  Gilbert,  30  I..  J.,  Ex.  170;  6  H.  &  N.  53G,  S.  C;  Woods i'.  Dean, 
32  L.  J.,  Q.  B.  1;  3  B.  &  S.  101,  S.  C;  Cordery  v.  Colvin,  14  Com.  B.,  N.  S. 
374;  S.  C.  nom.  Cordery  v.  Colville,  32  L.  J.,  C.  P.  210;  Killbyt'.  Eochussen, 
18  Com.  B.,  N.  S.  357. 

3  Hicks  V.  D.  of  Beaufort,  4  Bing.  N.  C.  229,  232;  Campbell  v.  Webster, 
2  Com.  B.  258  ;  Patterson  v.  Becher,  6  Moore,  319  ;  Brownell  v.  Bonney, 
1  Q.  B.  39;  Pardoe  v.  O'Connor,  12  Jr.  Law  R.  63.  See  Bell  v.  Frankis,  4 
M.  &  Gr.  446;  Holmes  v.  Staines,  3  C.  &  Kir.  19. 

*  Wilkinsv.  Jadis,  1  M.  &  Rob.  41,  per  Ld.  Tenterden;  Curlewis  v.  Corfield, 
1  Q.  B.  814;  1  G.  &  D.  489,  S.  C.     See  ante,  §  796. 

5  Roe  V.  Minshal,  cited  B.  N.  P.  96,  c;  Dendy  v.  Nicholl,  27  L.  J.,  C.  P. 
220;  4  Com.  B.,  N.  S.  376,  S.  C.  See  Toleman  v.  Portbury,  6  Law  Rep., 
Q.  B.  245;  40  L.  J.,  Q.  B.  125,  S.  C. ;  in  Ex.  Ch.,  S.  C.  41  L.  J.,  Q.  B.  98; 
and  7  Law  Rep.,  Q.  B.  .344. 

«  Doe  V.  Peck,  i  B.  &  Ad.  428;  Cotesworth  v.  Spokes,  30  L.  J.,  C.  P.  220; 
10  Com.  B.,  N.  S.  10.3,  S.  C;  Ward  v.  Day,  33  L.  J.,  Q.  B.  3,  254;  4  B.  &  S. 
337;  and  5  B.  &  S.  359,  S.  C. 

'  Warwick  v.  Hooper,  3  M.  &  Gord.  60,  69,  per  Ld.  Truro,  C;  Croft  v. 
Lumley,  25  L.  J.,  Q.  B.  73;  5  E.  &  B.  648,  S.  C;  27  L.  J.,  Q.  B.  321,  S.  C. 
in  Dom.  Proc;  6  H.  of  L.  Cas.  672,  S.  C;  Price  v.  Worwood,  4  H.  &  N. 
512;  Davenport  v.  The  Queen,  L.  R.,  3  App.  Cas.  115,  per  Pr.  C;  47  L.  J., 
P.  C.  8,  S.  C.     See  Keene  v.  Biscoe,  47  L.  J.,  Ch.  644. 

8  Doe  V.  Birch,  1  M.  &  W.  402. 

(3566) 


CHAP.  SIV.]       WAIVER  OF  FORFEITURE — OF  A  NOTICE  TO  QUIT.  G99 

has  actually  been  brought/ — amount  to  an  acknowledgment  of  the 
tenancy  on  the  part  of  the  lessor,  and  will,  consequently,  waive  the 
forfeiture  f  though,  if  the  breach  be  a  continuing  one,  as  the  using 
rooms  in  a  prohibited  manner,  or  the  omitting  to  keep  premises 
insured  or  repaired,  the  acceptance  of  rent  after  such  breach  will  not 
waive  the  forfeiture  incurred  by  subsequent  user  or  omission.^  A 
notice  to  quit  will  also  in  general  be  regarded  as  waived,  if  the 
landlord  accepts  rent  subsequently  accruing  due,  or  puts  in  a  distress 
for  such  rent,  or  does  any  other  act  amounting  to  a  recognition  of 
an  existing  tenancy,  after  the  expiration  of  the  time  when  the  tenant 
ought  to  have  quitted  according  to  the  notice.*  Whether  a  simple 
demand  of  rent  subsequently  accruing  due,  or  the  bringing  of  an 
action  for  such  rent,  will  operate  as  a  waiver  of  a  notice  to  quit,  is 
a  question  not  of  "law,  but  of  fact,  which  must  consequently  be 
determined  by  the  jury.^  And  here  it  must  be  remembered  that, 
as  a  notice  to  quit, — provided  it  be  a  valid  notice,'' — has  the  legal 
effect  of  determining  a  tenancy,  the  waiver  of  such  notice  does  not 
revive  the  tenancy  thus  determined,  but  creates  a  new  one.' 

§  807.  The  doctrine  of  implied  waiver,  as  applicable  to  the  law  §  73IA 
of  landlord  and  tenant,  is  not  now  recognised  in  Ireland,  the  Act  of 
23  &  24  V-,  c.  154,  having  expressly  enacted,  in  §  43,  that  where 
any  lease,  made  after  the  1st  of  January,  1861,  shall  contain  or 
imply  any  condition,  covenant,  or  agreement  to  be  observed  or  per- 
formed on  the  part  of  the  tenant,  no  act  done  or  suffered  by  the 
landlord  shall  be  deemed  a  dispensation  therewith,  or  a  waiver  of 

1  Grim  wood  v.  JMoss,  7  Law  Rep.,  C.  P.  360;  41  L.  J.,  C.  P.  239,  S.  C. 

2  Gooclright  v.  Davids,  2  Cowp.  803;  Walrond  v.  Hawkins,  44  L.  J.,  C.  P. 
116;  10  Law  Rep.,  C.  P.  342,  S.  C.  Roe  v.  Harrison,  2  T.  R.  430,  431;  Doe 
I'.  Allen,  3  Taunt.  78;  Doe  v.  Rees,  4  Bing.  N.  C.  384;  Arnshy  v.  Woodward, 
6  B.  &  C.  519. 

3  Doe  V.  Woodbridge,  9  B.  &  C.  376;  Doe  v.  Peck,  1  B.  &  Ad.  428;  Hyde 
V.  Watts,  12  M.  &  W.  254;  Price  v.  Worwood,  4  H.  &  K  512;  Doe  v.  Gladwin, 
6  Q.  B.  953,  963;  Doe  v.  Jone.s,  5  Ex.  R.  498.     See  post,  §  847. 

*  Zouch  V.  Willingale,  1  H.  Bl.  311;  Goodriglit  v.  Cordwent,  6  T.  R.  219; 
Doe  V.  Batten,  1  Cowp.  243;  Doe  v.  Calvert,  2  Camp.  388. 

*  Blyth  V.  Dennett,  13  Com.  B.  178;  Doe  v.  Batten,  1  Cowp.  243;  Vance 
V.  Vance,  I.  R.,  5  C.  L.  363. 

«  See  Holme  v.  Brunskill,  L.  R.,  3    Q.  B.  D.  495,  per  Ct.  of  App.;  47  L.  J., 
Q.  B.  610,  S.  C;  Aliearn  v.  Bellman,  L.  R.,  4  Ex.  D.  201,  per  Ct.  of  App. 
^  Tayleur  v.  Wildin,  3  Law  Rep.,  Ex.  303;  37  L.  J.,  Ex.  173,  S.  C. 

(3567) 


700  ADMISSIONS  IMPLIED  FROM  ACQUIESCENCE.  [pART  II. 

the  benefit  of  the  same  in  respect  of  any  breach  thereof,  unless  such 
dispensation  or  waiver  shall  be  signified  by  the  landlord,  or  his 
authorised  agent,  in  writing  under  his  hand. 


§  808.  The  class  of  admissions  now  under  discussion  has,  how- 
ever, on  another  occasion,  been  paitially  recognised  by  the  Legisla- 
ture, which,  for  the  sake  of  promoting  substantial  justice,  has  drawn 
a  conclusive  inference  from  particular  conduct.  Thus,  if  a  lease 
granted  under  a  power  be  invalid  by  reason  of  some  deviation  from 
the  terms  of  the  power,  the  acceptance  of  rent  under  it  will, — by 
virtue  of  the  Act  of  13  &  14  V.,  c.  17,  §  2,^be  deemed  a  confirma- 
tion of  the  lease  as  against  the  person  accepting  the  rent;  provided 
such  person,  or  some  one  else  by  his  authority,  shall,  before  or  at 
the  time  of  accepting  the  rent,  sign  a  receipt,  memorandum,  or  note 
in  writing,  confirming  such  lease. 

§  809.'  Admissions  may  also  be  implied  from  the  acquiescence  of 
the  party.  But  acquiescence,  to  have  the  effect  of  an  admission, 
must  exhibit  some  act  of  the  mind,  and  amount  to  voluntary  de- 
meanour or  conduct  of  the  party."  And  whether  it  be  acquiescence 
in  the  conduct  or  in  the  language  of  others,  it  must  plainly  appear 
that  such  conduct  was  fully  known,  or  such  language  fully  under- 
stood, by  the  party,  before  any  inference  can  be  drawn  from  his 
passiveness  or  silence.'  The  circumstances,  too,  must  be  not  only 
such  as  afforded  him  an  opportunity  to  act  or  to  speak,  but  such 
also  as  would  properly  and  naturally  call  for  some  action  or  reply 
from  men  similarly  situated.*  Thus,  where  a  landlord  quietly 
suffers  a  tenant  to  expend  money  in  making  alterations  and  im- 
provements on  the  premises,  it  is  evidence  of  his  consent  to  the 
alterations ;''  though  the  mere  lying  by  and  passively  witnessing  a 
breach  of  covenant  for  several  years,  is  not  such  an  acquiescence  as 

1  1  Gr.  Ev.  §  197,  in  great  part.  ^  Allen  v.  McKeen,  1  Sumn./314. 

=*  See  Smith  v.  Hayes,  I.  E.,  1  C.  L.  333;  Davies  v.  Marshall,  10  Com.  B., 
N.  S.  697;  Bickett  v.  Morris,  1  Law  Rep.,  H.  L.  Sc.  57. 

*  Melen  v.  Andrews,  M.  &  M.  330;  explained  in  Simpson  r.  Robinson,  12 
Q.  B.  512,  per  Ld.  Denman;  R.  v.  Newman,  1  E.  &  B.  268;  Boyd  r.  Bolton, 
1  Ir.  Eq.  K.  113.     See  Bigg  v.  Strong,  3  Sm.  &  Giflf.  592. 

^  Doe  V.  Allen,  3  Taunt.  78,  80;  Doe  v.  Pye,  1  Esp.  366,  per  Ld.  Kenyon; 
Neale  v.  Parkin,  1  Esp.  229,  per  id.  See,  also,  Stanley  v.  White,  14  East,  332; 
Cotching  V.  Basset,  32  L.  J.,  Ch.  280,  per  Romilly,  M.  E.;  32  Beav.  101,  S.  C. 

(3508) 


CHAP.  XIV,]        ADMISSIONS  IMPLIED  FROM  ACQUIESCENCE.  701 

to  amount  to  a  waiver  of  the  forfeiture.'  Again,  if  a  tenant,  on 
personally  receiving  notice  to  quit  on  a  particular  day,  makes  no  ob- 
jection, lie  will  generally,  in  England,"  ba  deemed  to  have  admitted 
that  his  tenancy  expires  on  that  day;^  but  if  he  cannot  read,  or 
even  if  he  did  not  read  the  notice  in  the  presence  of  the  person 
serving  it  upon  him,  it  will  be  treated  as  a  notice  not  personally 
served,*  and  will  go  for  nothing.^  Thus,  also,  a  debtor  being  in- 
quired for,  and  hearing  himself  denied,  may  thereby  furnish  some 
evidence  against  himself  that  he  is  beginning  to  keep  house  with 
intent  to  defeat  or  delay  his  creditors,  and,  consequently,  is 
committing  an  act  of  bankruptcy;'^  and,  in  general,  where  one 
knowingly  avails  himself  of  another's  acts  done  for  his  benefit,  the 
jury  will  be  justified  in  considering  such  conduct  as  an  admission 
of  his  obligation  to  pay  a  reasonable  compensation.'  So,  where 
an  executor,  in  an  administration  action,  had  been  served  with 
notice  of  motion  to  pay  into  court  part  of  the  testator's  estate, 
which  was  sworn  by  affidavit  to  have  reached  his  hands,  Sir  George 
Jessel, — though  he  declined,  in  accordance  with  the  rule  in  Equity, 
to  rely  simply  on  the  proof  afforded  by  the  affidavit— was  yet 
induced  to  hold  that  the  silence  of  the  defendant,  in  not  disputing 
the  facts  deposed  to,  was   a  sufficient  admission  of  their  truth  to 

'  Doe  I'.  Allen,  3  Taunt.  78;  Perry  v.  Davis,  3  Com.  B.,  N.  S.  7G9.  But  see 
ante,  |  806. 

*  In  Ireland,  however,  the  law  is  regulated,  in  part,  by  §  G  of  23  &  24  V.,  c. 
154,  and  in  part,  by  s.  58  of  33  «&  34  V,,  c.  46.  The  former  Act  enacts,  that 
"  every  tenancy  from  year  to  year  shall  be  presumed  to  have  commenced  on 
the  last  gale  day  of  the  calendar  year  on  which  rent  has  become  due  and 
payable  in  respect  of  the  premises,  until  it  shall  appear  to  the  contrary . "  This 
law,  though  called  a  presumption,  is,  in  fact,  a  mere  arbitrary  rule,  badly 
expressed. 

^  Doe  d.  Leicester,  2  Taunt.  109;  Thomas  v.  Thomas,  2  Camp.  647;  Doe  v. 
Forster,  13  East,  405;  Oakapple  v.  Copous,  4  T.  E.  361;  Doe  v.  Wombwell,  2 
Camp.  559,  per  Ld.  Ellenborough.  See  AValker  v.  God^,  30  L.  J.,  E.x.  172;  6 
H.  &  N.  594,  S.  C. 

*  Doe  V.  Calvert,  2  Camp.  388,  per  Ld.  Ellenborough,  explained  in  2  Camp. 
648. 

*  Thomas  v.  Thomas,  2  Camp.  649;  Doe  v.  Forster,  13  East,  405. 

«  Key  V.  Shaw,  8  Bing.  320.     See  46  &  47  V.,  c.  52,  |  4,  subs.  1  (D). 

'  Morris  r.  Burdett,  1  Camp.  218,  per  Ld.  Ellenborough,  where  a  candidate 
not  bound  by  statute  to  pay  for  the  hustings  erected  for  an  election,  had  made 
use  of  them.  Abbot  v.  Hermon,  7  Greenl.  118,  were  a  schoolhouse  was  used  by 
the  school  district;  Hayden  v.  Madison,  id.  76. 

(3569) 


702  NOT  OBJECTING  TO  ACCOUNTS  SENT  BY  POST.  [pART  II. 

justify  the  making  of  the  order.'  So,  in  settlement  law,  where 
two  brothers,  claiming  derivative  settlements  from  their  father, 
were  removed  by  successive  orders,  and  the  examination  of  the 
father  proving  his  settlement  was  served  upon  the  appellants 
together  with  the  first  order,  against  which  there  was  no  appeal, 
the  fact  of  the  appellants  not  objecting  to  the  ground  of  removal 
when  they  received  the  first  son,  was  held,  to  be  some  slight 
evidence  of  an  admission  that  the  father  was  settled  in  their  parish; 
and,  consequently,  although  an  appeal  against  the  second  order 
the  first  was  inadmissible,^  the  father's  examination  was  received 
as  part  of  the  evidence  of  such  admission.^ 

§  810.  The  raising  an  objection  to  one  item  of  an  account,  §  734 
no  remark  being  made  as  to  the  rest,  will  be  evidence  of  an 
account  stated  as  to  those  items  to  which  no  objeetion  has  been 
made;*  and,  among  merchants,  an  account  rendered  will  be  re- 
garded as  allowed,  if  it  be  not  objected  to  within  a  second  or  third 
post,^  or,  at  least,  if  it  be  kept  for  any  length  of  time  without 
making  an  objection.®  With  respect  to  ordinary  accounts,  how- 
ever, a  distinction  has  been  taken  in  Ireland  between  such  as  are 
sent  by  post,  and  those  delivered  by  hand;  and  it  has  been  held 
that  the  former,  though  kept  by  the  party  to  whom  they  were  sent 
without  observation,  are  not  admissible  against  him,  as  evidence 
that  he  had  acquiesced  in  their  contents.'  In  the  case  where  this 
point  was  determined,  Chief  Justice  Bushe  remarked,  that  what  a 
party  says  upon  an  account  furnished  to  him,  or  upon  a  statement 
made  in  his  presence,  may  be  given  in  evidence  against  him  along 
with  the  account  or  statement,  because  what  is  thus  offered  is  the 
act  or  declaration  of  the  party  to  be  affected  by  it,  and  the  account 
or  the  statement  is  by  reference  made  a  part  of  such  act  or  declara- 
tion; but   the   naked    fact  that  an  account  remains    in    the    pos- 

1  Freeman  v.  Cox,  L.  R.,  8  Ch.  D.  148;  47  L,  J.,  Ch.  560,  S.  C.  See  also, 
Hampden  v.  Wallis,  L.  R.,  27  Ch.  D.  251,  per  Chitty,  J. 

2  On  the  authority  of  R.  v.  Duch.  of  Kingston,  20  How.  St.  Tr.  538,  n. 
5  R.  V.  Sow,  4  Q.  B.  93. 

*  Chisman  v.  Count,  2  M.  &  Gr.  307. 

^  Sherman  v.  Sherman,  2  Vern.  27G,  per  Hutchins,  Ld.  Com. 

9  Willis  V.  Jernegan,  2  Atk.  252,  per  Ld.  Hardwieke;  Tickel  v.  Short,  2  Ves. 
Sen.  239,  per  id.,  where  the  account  had  been  kept  without  objection  for  two 
years. 

"  Price  V.  Ramsay,  2  Jebb  &  Sy.  338. 

(3570) 


CHAP.  XIV.]  EFFECT  OF  NOT  ANSWERING  LETTERS.  703 

session  of  a  party  to  wbom  it  was  sent,  cannot  amount  to  an 
acquiescence  in  its  contents.  His  lordship  added*  that  the  ad- 
mission of  such  evidence  would  countenance  the  notion,  that  a  man 
might,  by  furnishing  an  account  claiming  a  balance  against  his 
creditor,  establish  an  acquittance  for  himself.' 

§  811.  The  same  distinction  between  letters  and  oral  statements  I  735 
has  been  partially  recognised  in  England.  "What  is  said  to 
a  man  before  his  face,"  observed  Lord  Tenterden  in  Fairlie  v. 
Denton,"  "  he  is  in  some  degree  called  on  to  contradict,  if  he  does 
not  acquiesce  in  it;  ^  but  the  not  answering  a  letter  is  quite  different; 
and  it  is  too  much  to  say,  that  a  man,  by  omitting  to  answer  a 
letter  at  all  events,  admits  the  truth  of  the  statements  that  letter 
contains."  Lord  Denman,  also,  in  a  later  case,  declared,  that  "it 
was  a  great  deal  too  broad  a  proposition  to  say,  that  every  paper 
which  a  man  might  hold,  purporting  to  charge  him  with  a  debt  or 
liability,  was  evidence  against  him  if  he  produced  it."  *  InGaskill 
V.  Skeene,^  however,  the  Court  of  Queen's  Bench  subsequently 
held,  that  letters  containing  a  demand,  written  to  a  defendant,  and 
unanswered  by  him,  were  admissible  in  evidence  for  the  plaintiff, 
though  they  also  stated  facts  showing  how  the  demand  arose; 
but  possibly  that  case  rested  on  the  ground,  that  the  defendant  had 
made  some  unsatisfactory  statements  respecting  these  letters,  in  a 
subsequent  conversation  with  the  plaintiff's  agent.  On  this  last 
ground  unanswered  letters  written  to  a  party  have  been  admitted  as 
evidence  in  America. "^ 

§  812.  Letters  and  other  papers  found  in  a  party's  possession    §  735 
will  occasionally,  in  a  civil  suit,  be  evidence  against  him,  as  raising 
a  prima  facie  inference  that  he  knows  their  contents  and  has  acted 
upon  them;^  and  they  are  frequently  received  in  criminal  prosecu- 

1  Price  V.  Ramsay,  2  Jebb  &  Sy.  342,  343. 

=  3  C.  &  P.  103. 

^  This  doctrine,  by  the  by,  would  justify  much  speaking  at  St.  Stephen's. 

*  Doe  V.  Frankis,  11  A.  &  E.  795. 

M9  L.  J.,  Q.  B.  275;  14  Q.  B.,  664,  S.  C.  See,  also.  Keen  v.  Priest,  1  Post. 
&Fin.  314;  Lucy  v.  Mouflet,  29  L.  J.,  Ex.  112;  5  H.  &  N.  229,  S.  C;  Came 
V.  Steer,  29  L.  J.,  Ex.  281;  5  H.  &  N.  628,  S.  C;  and  Gore  v.  Hawsey,  3 
Post.  &  Pin.  509,  per  Martin,  B. 

«  Dutton  V.  Woodman,  9  Cush.  262. 

'  Hewitt  V.  Piggott,  9  C.  &  P.  75. 

(3571) 


704  ACQUIESCENCE   IN   STATEMENTS   BY    STRANGERS.       [PAET  II. 

tiors,  especially  those  for  conspiracy  and  treason,  though  their 
weight,  as  evidence  against  the  prisoner,  will  in  a  great  measure 
depend  on  the  fact,  whether  answers  to  them  can  be  traced,  or 
whether  anything  can  be  shown  to  have  been  done  upon  them.' 
So,"  also,  the  opportunity  of  constant  access  to  documents  may 
sometimes,  by  raising  a  presumption  that  their  contents  are  known, 
afford  ground  for  affecting  parties  with  an  implied  admission  of  the 
truth  or  correctness  of  such  contents.^  Thus,  the  rules  of  a  club, 
or  the  record  of  the  proceedings  of  a  society,  contained  in  a  book 
kept  by  the  proper  officer  and  accessible  to  the  members,* — 
charges  against  a  club,  entered  by  the  servants  of  the  house  in  a 
book  kept  for  that  purpose  open  in  the  club-room,^  and  the  like, 
— are  admissible  against  the  members;  their  knowledge  of  the 
contents  of  the  books,  and  their  acquiescence  therein,  being 
presumable  under  the  circumstances.  On  similar  grounds,  \)Ook8 
of  account  which  have  been  kept  between  master  and  servant, 
tradesman  and  shopman,  banker  and  customer,  or  co- partners,  will 
occasionally  be  admitted  as  evidence  even  in  favour  of  the  party 
by  whom  they  have  been  written,  provided  that  the  opposite  party 
has  had  ample  opportunities  for  testing  from  time  to  time  the 
accuracy  of  the  entries.*^ 

§  813.'  But  in  regard  to  admissions  inferred   from   acquiescence    §  737 
in  the    oral   statements  of  others,  the  maxim  Qui  tacet  consentire 
videtur, — however  it  may  be  recognised  by  the  lover, — must  by 
the   lawyer  be  applied   with  careful  discrimination.      "Nothing," 
it  has  been  observed,  "  can  be  more  dangerous  than  this   kind  of 

1  R.  V.  Home  Tooke,  25  How.  St.  Tr.  120,  121,  per  Eyre,  C.  J. ;  E.  v. 
Watson,  2  Stark.  140;  32  How.  St.  Tr.  349,  351,  S.  C. 

2  Gr.   Ev.  ?i  198,  in  part. 

3  See,  however,  Hallmark's  Case,  47  L.  J.,  Ch.  868,  per  Ct.  of  App.;  L.  E. 
9  Ch.  D.  329,  S.  C. ;  disapprovinjr  of  Wheatcroft's  Case,  42  L.  J.,  Ch.  853; 
and  Ex.  p.  Brown,  19  Beav.  97,  104. 

*  Raggett  V.  Musgrave,  2  C.  &  P.  556,  per  Abbott,  C.  J.  ;  Alderson  r.  Clay, 
1  Stark.  R.  405,  per  Ld.  Ellenborough ;  Ashpitel  v.  Sercombe,  5  Ex.  R.  147. 

*  Wiltzie  V.  Adamson,  1  Ph.  Ev.  357. 

^Symonds  r.  Gas  Light  and  Coke  Co.,  11  Beav.  283,  287;  Boardman  v. 
Jackson,  2  Ball  &  B.  382;  Kilbce  &  Sneyd,  2  Moll.  193:  Lodge  v.  Prichard, 
3  De  Gex.  M.  &  G.  906,  Rules  of  Sup.  Ct.  1883,  Ord.  XXXIII.  R.  3;  and  30 
&  31  v.,  c.  44,  l  159,  Ir.,  cited  ante,  'i  711. 

'  Gr.  Ev.  §  199.  in  great  part. 

(3572) 


CHAP.    XIV.]    SILENCE    OF    ACCUSED    IN   JUDICIAL    INQUIRIES.  705 

evidence.  It  should  always  be  received  with  caution  :  and  never 
ought  to  be  received  at  all,  unless  the  evidence  is  of  direct  declara- 
tions of  that  kind,  which  naturally  calls  for  contradiction  ;  some 
assertions  made  to  the  party  with  respect  to  his  right,  which  by  his 
silence  he  acquiesces  in."  '  A  distinction  has  accordingly  been 
taken  between  declarations  made  by  a  party  interested  and  those 
made  by  a  stranger;  and  while  what  one  party  declares  to  the 
other  without  contradiction  is  admissible  evidence,  what  is  said  to 
a  party  by  a  third  person  may  well  be  inadmissible.  It  may  be 
impertinent,  and  be  best  rebuked  by  silence.^  Still  less  will  state- 
ments made  by  strangers  in  the  presence  of  a  party  be  receivable 
against  him,  if  they  be  not  directly  addressed  to  him  ;  because,  in 
such  case,  he  can  scarcely  under  any  circumstances  be  called 
upon  to  interfere.  Therefore,  where  in  a  real  action,  upon  a  view 
of  the  premises  by  a  jury,  one  of  the  chainbearers  was  the  owner 
of  a  neighbouring  close,  respecting  the  bounds  of  which  the 
litigating  parties  had  much  altercation,  their  declarations  in  his 
presence  were  held  inadmissible  against  him,  in  a  subsequent  action 
respecting  his  own  close.^ 


§  814.  Moreover,  to  affect  one  person  with  the  statements  of  I  "^38 
others,  on  the  gi'ound  of  his  implied  admission  of  their  truth  by 
silent  acquiescence,  it  is  not  enough  that  they  were  made  in  his 
presence,  or  even  to  himself,  by  parties  interested,  but  they  must 
also  have  been  made  on  an  occasion,  when  a  reply  from  him 
might  be  properly  expected}  Depositions,  therefore,  taken  in  the 
presence  of  a  party  during  a  judicial  investigation,  observations 
made  by  a  magistrate  to  the  parties  before  him,  and  confessions 
of  an  accomplice  criminating  his  co-prisoner  before  the  justices, 
will  not,  in  general,'^  be  evidence  in  any  subsequent  trial,  whether 


'  Moore  v.  Smith,  14  Serg.  &  R.  393,  per  Duncan,  C.  J. 

''  Child  V.  Grace,  2  C.  &  P.  193,  per  Best,  C.  J. 

^  Moore  r.  Smith,  14  Serg.  &  R.  388. 

♦  Boyd  J'.  Bolton,  8  Ir.  Eq.  R.  113. 

^  This  cannot  be  laid-down  as  a  strict  rule  of  law  applicable  on  all  occa- 
sions ;  for  as  Ld.  Denman  observed,  in  Simpson  v.  Robinson,  12  Q.  B.  512, 
"  ca.ses  may  certainlj^  be  conceived,  in  which  a  party,  by  not  denying  a  charge 
made  against  him  in  a  court  of  justice,  may  possibly  afford  strong  proof  that 
the  imputation  is  just."     See  R.  v.  Coyle,  7  Cox,  74. 

(3573) 


706  SILENCE   WEAK   EVIDENCE   OF   ACQUIESCENCE.        [PART  II. 

civil  or  criminal,  against  the  party  who  heard  them  in  silence  ; 
because  in  judicial  inquiries  a  regularity  of  proceeding  is  adopted, 
which  often  prevents  a  person  from  interfering  when  and  how  he 
pleases,  as  he  naturally  would  do  in  a  common  conversation.' 
The  same  inferences  cannot,  therefore,  be  drawn  from  his  silence 
or  his  conduct  on  such  occasions,  as  might  reasonably  result  from 
similar  behaviour,  were  he  under  no  restraint  ;  and  as  it  is  only 
for  the  sake  of  these  inferences  that  the  statements  of  other  parties 
can  ever  be  admitted,  they  are  properly  rejected  whenever  they  do 
not  warrant  the  inferences  sought  to  be  drawn  from  them.  A 
similar  distinction  has  been  recognised  in  the  civil  law,  by  which 
"confessio  facta  seu  prsesumpta  ex  taciturnitate  in  aliquo  judicio, 
non  nocebit  in  alio."  ^ 

§  815.  If,  however,  the  statement  of  one  person  calls  forth  a  ^ 
reply  from  another,  such  statement  may  then  be  read  in  conjunc- 
tion with  the  reply,  and  will  become  evidence  against  the  party 
replying  so  far  as  the  answer  dii'ectly  or  indirectly  admits  its 
truth;  and  it  will  make  no  difference  in  the  application  of  this 
rule,  whether  the  words  were  spoken  by  an  interested  party  or  a 
stranger, — whether  they  were  addressed  or  not  to  the  party  reply- 
ing,— or  whether  they  fell  from  the  parties,  the  witnesses,  or  the 
court,  in  a  judicial  proceeding,  or  were  uttered  during  the  course  of 
an  ordinary  conversation.^ 

§  816.*  But  the  silence  of  the  party,  even  where  the  declarations    §  740 
are  addressed  to  himself,  at  a  time  too  when  he  is  at  full  liberty  to 
reply  as  he  thinks  lit,  is,  at  best,  worth   very  little  as  evidence  of 
acquiescence  ;  ^  and  if  he  has  no  means  of  knowing  the  truth  or 
falsehood  of  the  statement,  the  fact  that  he  did  not  in  terms  deny 


^  Melen  v.  Andrews,  M.  &  M.  336,  per  Parke,  J.;  Short  v.  Stoy,  cited  in 
Roscoe  Ev.  54,  55,  as  ruled  by  Alderson,  B. ;  R.  v.  Appleby,  3  Stark.  R.  33, 
per  Holroyd,  J. ;  R.  v.  Turner,  1  Moo.  C.  C.  347,  348,  per  Patteson,  J. ;  Child 
V.  Grace,  2  C.  &  P.  193. 

2  1  Masc.  de  Prob.,  concl.  348,  n.  31. 

3  Child  V.  Grace,  2  C.  &  P.  193  ;  Jones  v.  Morrell,  1  C.  &  Kir.  266,  per  Ld. 
Denman  ;  R.  v.  Edmunds,  6  C.  &  P.  164,  per  Tindal,  C.  J. ;  Boyd  v.  Bolton, 
Sir.  Eq.  R.  113. 

*  Gr.  Ev.  §  199,  in  part. 

6  See  Ch.  26  ol  St.  Matthew,  v.  59—63  ;  and  Ch.  27,  v.  12—14, 

(3574) 


CHAP.  XIV.]  EFFECT  OF  ADMISSIONS  WHEN  PROVED.  707 

it  is  almost  valueless.'  In  all  these  cases  it  must  be  distinctly 
remembered,  that  the  statement  made  in  the  party's  presence  or 
hearing^  is  not  evidence  against  him,  but  his  own  conduct  in 
consequence  of  such  statement  is  the  sole  evidence.  Magistrates 
often  make  mistakes  on  this  subject ;  but  it  is  highly  important 
that  the  distinction  should  be  observed.^ 


§  817.*  The  effect  of  admissions,  when  proved,  must  next  be  I  "741 
considered  ;  and  with  regard  to  their  conclusiveness,  it  is  first  to 
be  observed,  that  the  policy  of  the  law  favours  the  investigation 
of  truth  by  all  expedient  methods  ;  and  that  the  doctrine  of 
estoppels,  by  which  further  investigation  is  precluded,  being  an 
exception  to  the  general  rule,  and  being  adopted  only  for  the  sake 
of  general  convenience,  and  for  the  prevention  of  fraud,  is  not 
to  be  extended  beyond  the  reasons  on  which  it  is  founded.^  It  is 
also  to  be  observed,  that  estoppels  bind  only  parties  and  privies  ; 
and  not  strangers.  Hence  it  follows  that  a  sherifF,  who,  being 
armed  with  a  writ  of  execution  in  favour  of  a  creditor,  seizes 
goods  as  the  property  of  the  debtor,  is  not  bound  by  an  estoppel 
which  would  have  prevented  the  debtor  himself  from  claiming  the 
goods.®  Neither,  as  it  seems,  would  the  trustee  of  a  bankrupt  be 
bound  by  the  bankrupt's  written  admission^,  because  the  court 
would  regard  the  trustee  as  claiming  adversely  to  the  bankrupt.^ 
Again,  though  a  stranger  may  often  rely  on  an  admission,  which 
parties  or  privies  might  have  specially  pleaded  by  way  of  estoppel, 
yet,  in  his  case  it  is  only  matter  of  evidence  to  be  considered 
by  the  jury.  This  subject  was  very  clearly  illustrated  by  Mr. 
Justice  Bayley,  in  the  case  of  Heane  v.   Kogers,^  which  was  an 

'  Hayslep  v.  Gymer,  1  A.  &  E.  165,  per  Parke,  J.  See,  further,  on  the 
subject  of  tacit  admissions,  The  State  ?•.  Kawls,  2  Nott  &  M'C.  301  ;  Batturs 
r.  Sellers,  5  Har.  &  J.  117,  119.  '^  See  Neile  v.  Jakle,  2  C.  &  Kir.  709. 

•^  Per  Alderson,  B.,  at  Maidstone  Sp.  Ass.  1842,  MS.;  Doe  v.  Frankis,  11 
A.  &  E.  793,  per  Ld.  Denman.         *  Gr.  Ev.  I  204,  in  part.         ^  See  ante,  I  89. 

*  Richards  r.  Johnson,  4  H.  &  N.  G60  ;  overruling  the  decision  of  Channell, 
B.,  in  S.  C,  reported  1  Post.  &  Fin.  447. 

'  Harris  v.  Rickett,  4  H.  &  N.  6,  per  Brannvell,  B. 

«  9  B.  &  C.  577,  586,  587.  See  Morgan  v.  Couchman,  14  Com.  B.  100  ; 
Painter  v.  Abel,  3  Post.  &  Fin.  518,  per  Erie,  C.  J.;  Welland  Canal  Co.  r. 
Hathaway,  8  Wend.  483  ;  Jennings  v.  Whittaker,  4  Monroe,  50.  See,  also, 
Ld.  Londesborongh's  case,  4  De  Gex,  M.  &  G.  411;  and  Ld.  Londesborough  v. 
Foster,  3  B.  &  S.  805. 

24  LAW  OF  Evin. — V.  II.  (3575) 


70S  ADMISSIONS  WHEN  NOT  CONCLUSIVE.  [PART  11. 

action  of  trover,  brought  by  a  person,  who  had  been  declared 
a  bankrupt,  against  his  assignees,  to  recover  the  value  of  goods, 
which,  as  assignees,  they  had  sold.  The  defendants  contended 
that  the  plaintiff  was  estopped  from  bringing  this  action,  as,  in 
addition  to  other  evidence  of  his  acquiescence  in  their  title,  it 
appeared  that,  after  the  issuing  of  the  commission,  he  had  given 
notice  to  the  lessors  of  a  farm  "which  he  held,  that  he  had 
become  bankrupt,  and  was  willing  to  give  up  the  lease,  where- 
upon the  lessors  accepted  the  lease,  and  took  possession  of  the 
premises.  The  question,  therefore,  was,  whether  he  was  pre- 
cluded by  this  surrender  from  disputing  the  commission  in  the 
present  suit. 

§  818.  On  this  point  the  language  of  the  learned  judge  was  as  ?  742 
follows: — "There  is  no  doubt  but  that  the  express  admissions  of 
a  party  to  the  suit,  or  admissions  implied  from  his  conduct,  are 
evidence,  and  strong  evidence,  against  him  ;  but  we  think  that  he 
is  at  liberty  to  prove  that  such  admissions  were  mistaken  or  were 
untrue,  and  is  not  estopped  or  concluded  by  them,  unless  another 
person  has  been  induced  by  them  to  alter  his  condition  ;  in  such 
a  case  the  party  is  estopped  from  disputing  their  truth  with 
respect  to  that  person  (and  those  claiming  under  him),  and  that 
transaction  ;  but  as  to  third  pei'sons  he  is  not  bound.  It  is  a 
well  established  rule  of  law,  that  estoppels  bind  only  parties  and 
privies,  not  strangers.'  The  offer  of  surrender  made  in  this  case 
was  to  a  stranger  to  this  suit;  and  though  the  bankrupt  may  have 
been  bound  by  his  representation  that  he  was  a  bankrupt,  and  his 
acting  as  such,  as  between  him  and  the  stranger  to  whom  that 
representation  was  made,  and  who  acted  upon  it,  he  is  not  bound 
as  between  him  and  the  defendants,  who  did  not  act  on  the  faith 
of  that  representation  at  all.  The  bankrupt  wo  aid  probably  not 
have  been  permitted,  as  against  his  landlords, — whom  he  had 
induced  to  accept  the  lease  without  a  formal  surrender  in  writing, 
and  to  take  possession,  upon  the  supposition  that  he  was  a  bank- 
rupt, and  entitled  under  6  G.  4,  c.  16,  §  75,  to  give  it  up, — to 
say  afterwards  that  he  was  not  a  bankrupt,  and  bring  an  action  of 
trover    for    the    lease,    or    an  ejectment  for  the  estate.     To    that 


'  Co.  Lit.  352  a. ;  Com.  Dig.  Estop.  C. 

(3576) 


CHAP.  XIV.]  ADMISSIONS  WHEN  NOT  CONCLUSIVE.  TOO 

extent  he  would  have  been  bound,  probably  no  further,  anl 
certainly  not  as  to  any  other  persons  than  those  landlords.  This 
appears  to  us  to  be  the  rule  of  law,  and  we  are  of  opinion  that 
the  bankrupt  was  not  by  law,  by  his  notice  and  oflFer  to  surrender, 
estopped;  and  indeed  it  would  be  a  great  hardship  if  he  were 
precluded  by  such  au  act.  It  is  admitted  that  his  surrender  to  his 
commissioners  is  no  estoppel,  because  it  would  be  very  perilous  to 
a  bankrupt  to  dispute  the  commission,  and  to  try  its  validity  by 
refusing  to  surrender."  A  similar  observation,  though  not  to  the 
same  extent,  applies  to  this  act;  for  whilst  his  commission  dis- 
ables him  from  carrying  on  his  business,  and  deprives  him  for 
the  present  of  the  means  of  occupying  his  farm  with  advantage, 
it  would  be  a  great  loss  to  the  bankrupt  to  continue  tenant ; 
paying  a  rent  and  remaining  liable  to  the  covenants  of  the  lease, 
and  deriving  no  adequate  benefit;  and  it  cannot  be  expected  that 
he  should  incur  such  a  loss,  in  order  to  be  enabled  to  dispute  his 
commission  with  effect.  It  is  reasonable  that  he  should  do  the 
best  for  himself  in  the  unfortunate  situation  in  Avhich  he  is 
placed." 

§  819.  The  doctrine  propounded  in  Heane  v.  Rogers,^  that  a  ^  '^'^^ 
party  is  always  at  liberty  to  prove  that  his  admissions  were 
founded  on  mistake,  unless  his  opponent  has  been  induced  by 
them  to  alter  his  condition,  is  as  applicable  to  mistakes  in  respect 
of  legal  liability,  as  to  those  in  respect  of  matters  of  fact'  In 
all  cases,  therefore,  of  this  nature,  the  jury,  with  the  view  of  esti- 
mating the  efPect  due  to  an  admission,  will  be  justified  in  consider- 
ing the  circumstances  under  which  it  was  made;  and  if  it  should 
appear  to  have  been  made  under  an  erroneous  notion  of  legal 
liability,  they  may  qualify  its  effect  accordingly.* 

§  820.  In  a  former  part  of  this  work,  we  have  treated  of  estoppels    ^  744 
by  deed,  alluded  to  those  by  record,  and  discussed  that  particular 
class  of  estoppels  in  pais,  which  relates  to   the  rights  of  landlord 
and  tenant;  ^  and  in  the  present  chapter  it  has  Already  been  shown 

1  See  Flower  v.  Herbert,  2  Ves.  Sen.  326.  ''  9  B.  &  C.  577. 

'  Newton  t".  Liddiard,  12  Q.  B.  927,  per  Ld.  Denman. 

*  Newton  v.  Belcher,  1  Q.  B.  921;  and  Newton  v.  Liddiard,  12  Q.  B.  925. 

*  Ante,  U  89—103. 

(3577) 


710  ADMISSIONS  IN  PLEADINn.  [PAET  II. 

that  admissions  solemnly  made  in  tho  course  of  judicial  proceed- 
ings, whether  as  a  substitute  for  regular  proof,  or  in  a  case 
stated  for  the  opinion  of  the  court,  are  on  motives  of  policy  and 
justice,  deemed  to  be  conclusive.'  It  remains,  then,  only  to 
examine  the  law  as  it  regards  other  conclusive  admissions ;  and  these 
will,  in  general,  be  found  to  range  themselves  under  one  or  other  of 
the  following  heads.  First,  admissions  expressly  or  tacitly  made 
hy  pleadings;  secondly,  admissions  which  have  been  acted  upon  by 
others.  To  these  may  be  added  a  few  cases  of  fraud  and  illegality, 
and  some  admissions  on  oath,  where  the  party  is  estopped  on 
grounds  of  public  policy. 

§  821.  With  respect  to  admissions  by  pleading,  it  was  at  one  §  745 
time  thought  that  a  party  might,  by  bringing  an  action  on  a 
contract,  estop  himself  from  denying  the  obligatory  force  of  the 
agreement  in  a  subsequent  action  against  himself.  In  conformity 
with  this  view  of  the  law,  a  strong  opinion  was  expressed  by  Chief 
Justice  Tindal,  in  the  case  of  the  Fishmongers'  Company  v. 
Kobertson,'  that  if  a  corporation  were  to  enter  into  an  executory 
contract,  which  was  invalid  against  themselves  for  not  being  under 
seal,  and  were  then  to  sue  thereon,  this  would  amount  to  an  ad- 
mission on  record,  that  such  contract  was  duly  entered  into  on 
their  part,  so  as  to  be  obligatory  on  them;  and  such  admission 
would  estop  them  in  a  cross  action,  from  setting  up  an  objection 
that  it  was  not  sealed  by  their  common  seal.  The  doctrine,  thus 
propounded,  has  on  several  occasions  been  brought  under  the 
notice  of  the  courts;  but  although  it  is  unquestionably  based 
on  substantial  justice,  it  has  hitherto  met  with  little  favour,  and 
will  probably  ere  long  be  expressly  overruled.^  The  law,  as  at 
present  understood,  seems  to  be,  that  the  statements  which  are 
contained  in  any  pleadiug,  though  binding  on  the  party  making 
them  for  all  purposes  in  the  cause,  ought  not  to  be  regarded 
in  any  subsequent  action  as  admissions  of  the  truth  of  the  facts 
stated.* 


'  Ante,  ?d  112,  783.  ""  5  M.  &  Gr.  193,  193. 

'  See  Copper  Miners'  Co.  j;.  Fox,  16  Q.  B.  229;  Boileau  v.  Riitlin,  2  Ex.  R. 
681,  per  Parke,  B.;  Buckniaster  v.  Meiklejohn,  8  Ex.  R.  G37,  per  id.;  The 
May.  of  Kidderminster  r.  Hardwicke,  43  L.  J.,  Ex.  9;  9  Law  Rep.,  Ex.  13, 
S.  c.  *  Cases  cited  in  last  note. 

(3578) 


CHAP.  XIV.J  ADMISSIONS  IN  PLEADING.  711 

§  822.  Still  less  will  any  admission,  which  has  been  incidentally  g  74C 
or  tacitly  made  in  pleading  in  one  buit,  estop  the  party  who  has 
made  it  from  denying  in  another  suit,  where  precisely  the  same 
matter  is  not  litigated,  the  fact  so  admitted.  For  instance,  where  a 
plea  to  an  action  on  a  bond  set  out  a  corrupt  agreement  between  the 
parties  irrespective  of  the  bond,  and  then  went  on  to  aver  that  the 
bond  was  given  to  secure,  among  other  moneys,  the  sum  mentioned 
in  the  said  agreement;  and  the  replication,  tacitly  admitting  the 
corrupt  agreement,  traversed  the  fact  of  the  bond  having  been  given 
in  consideration  thereof,  but  the  plaintiff  failed  on  this  issue;  it 
was  held,  that  the  admission  was  available  for  the  purpose  of  that 
suit  only;  and,  consequently,  the  plaintiff  was  at  liberty  to  dispute 
the  corrupt  nature  of  the  agreement,  in  a  subsequent  action  on  a 
deed,  which  was  signed  by  the  defendant  at  the  same  time  with  the 
bond  by  way  of  collateral  security.' 


§  823.  Although,  as  a  general  rule,  an  admission  made  in  one  ^  747 
suit  by  pleading  or  omitting  to  plead,  cannot  conclusively  bind  the 
party  in  any  subsequent  suit,  an  exception  to  this  rule  must  be 
recognised,  where  the  second  action  is  brought  on  a  judgment 
recovered  in  the  first.  For  example,  if  an  executor  or  administrator 
confess  judgment,  or  suffer  it  to  go  against  him  by  default,  he 
thereby  admits  assets  in  his  hands,  and  is  estopped  to  say  the  con- 
trary in  an  action  on  such  judgment,  suggesting  a  devastavit.* 
Some  proof  must  indeed  be  given  that  the  assets  have  been  wasted, 
in  order  to  charge  the  executor  or  administrator  personally  in  such 
a  case;  but  the  slightest  evidence  will  suffice  for  this  purpose;  and 
the  mere  issuing  of  a  writ  of  fieri  facias,  directed  to  the  county 
where  the  action  was  laid,  and  a  return  of  nulla  bona  thereto,  has, 
for  a  long  time  past,  been  deemed  evidence  enough.^  So,  where,  to 
an  action  against  three  executors,  two  had  pleaded  plene  adminis- 


'  Carter  v.  James,  13  M.  &  W.  137.  See  Rigge  v.  Burbidge,  15  M.  &  W. 
598;  4  Dowl.  &  L.  1,  S.  C;  and  Hunt  v.  Morrell,  3  Ex.  R.  241,  per  Pollock, 
C.  B. 

2  Skelton  v.  Hawling,  1  Wils.  258;  Re  Trustee  Relief  Act,  Higgins'  Trusts, 
2  Giff.  562. 

»  Leonard  v.  Simpson,  2  Biug.  N.  C.  176,  180,  per  Tindal,  C.  J. ;  2  Scott, 
335,  S.  C. 

(3579) 


712  ADMISSIONS  IN  TLEADIXG.  [PART  II. 

traverant,  and  the  third  had  admitted  assets  to  tho  amount  of  383?., 
the  court  held,  that,  in  a  subsequent  action  against  tho  third 
executor,  suggesting  a  devastavit,  the  phiintiff  was  entitled  to 
recover,  on  proof  that  the  SS'Sl.  had  been  deposited  with  bankers  to 
the  credit  of  the  executorship  account,  and  that  the  defendant,  after 
judgment  in  the  former  action,  had  given  tho  plaintiff  a  cheque  for 
the  amount,  which  was  dishonoured,  as  not  being  signed  by  tho 
co-executors.' 


§  824.  The  questions  which  usually  arise  with  respect  to  admis-  ?  ~^'^ 
sions  in  pleading  relate  to  their  effect  in  the  same  suit;  and  here  it 
may  be  laid  down  broadly,  that  "  every  allegation  of  fact  in  any 
pleading,  not  being  a  petition  or  summons,  if  not  denied  specifi- 
cally or  by  necessary  implication,  or  stated  to  be  not  admitted  in 
the  pleading  of  the  opposite  party,  shall  be  taken  to  be  admitted, 
except  as  against  an  infant,  lunatic,  or  person  of  unsound  mind  not 
BO  found  by  inquisition.""  The  proper  understanding  of  this  rule 
is  the  province  of  the  pleader:  ^  and  in  works  on  pleading  a  detailed 
explanation  of  its  effects  must  be  sought.  It  may,  however,  be  here 
pointed  out  that  the  rule  operates  only  with  respect  to  material 
allegations.  If,  therefore,  a  statement  of  defence  denies  a  particular 
fact  alleged  in  the  statement  of  claim,  it  does  not  thereby  admit  all 
the  immaterial  averments,  which  the  pleader  has  chosen  to  intro- 
duce as  part  of  the  plaintiff's  case.* 

§  825.  Thus,  where  a  declaration  in  assumpsit, — after  stating  ^  ''^•^ 
that  the  defendants  were  onmers  of  a  vessel,  on  which  the  plaintiff 
caused  to  be  shipped  some  potatoes  to  be  carried  by  them,  as  oivners 
of  the  vessel,  to  Liverpool;  in  consideration  whereof,  and  of  freight, 
they  promised  to  carry  the  potatoes  safely  as  aforesaid, — alleged  as 
a  breach,  that  through  their  negligence  the  goods  were  damaged: 
it  was  held,  that  the  general  issue  did  not  admit  that  the  defendants 


•  Cooper  r.  Taylor,  6  ^ST.  &  Gr.  989. 

»  Kules  of  Sup.  Ct.,  1883,  Ord.  XIX.,  R.  13.     But  see,  and  attempt  to  re- 
concile, this  Rule  with  R.  13  of  Ord.  XXVII.,  cited  po.st,  g  829. 
3  Van  Sandau  r.  Turner,  6  Q.  B.  785,  per  Ld.  Denman. 

*  Bingham  r.  Stanley,  2  Q.  B.  127;  Bcnnion  v.  Davison,  3  M.  &  W.  179; 
Dunford  v.  Trattles,  12  M.  &  W.  534,  per  Barke,  B. ;  King  v.  Norman,  4  Com. 
B.  884. 

(3580) 


CHAP.  XIV.]  ADMISSIONS    IN    PLEADING.  T13 

were  owners,  so  as  to  raise  the  inference  that  the  captain  was  their 
agent,  the  allegation  of  ownership  being  regarded  as  immaterial. 
The  declaration  in  this  case  would  have  been  equally  good  had  no 
such  allegation  been  made;  since  the  statement,  that,  in  considera- 
tion of  the  plaintift*  having  shipped  the  goods,  and  of  the  freight, 
the  defendants  promised  to  carry  them  safely,  would  have  been 
quite  sufficient,  when  coupled  with  an  averment  that  the  goods 
were  not  safely  carried,  to  have  made  a  complete  case  of  liability 
against  the  defendants.^ 

§  826.  Next,  the  omitting  to  traverse  a  material  allegation  so  |  7o;5 
far  admits  it,  that  the  x^^^^^tJI  '^^'^>^o  thus  pleads  over  cannot  disprove 
it.  This  accords  with  the  old  law,  and  therefore,  where,  in  trover 
for  bales  of  silk,  the  defendant  pleaded  that  A.  was  factor  of  the 
plaintiffs,  and  as  such,  before  andaf  the  time  of  the  pledge  men- 
tioned in  the  plea,  was  intrusted  bij  them  trith,  and  ivas  in  j^ossession 
o/,  dock -warrants  relating  to  the  bales:  that  he  delivered  the  dock- 
warrants  to  the  defendant,  and  pledged  with  him  the  bales,  as 
security  for  a  loan  which  the  defendant  then  advanced  to  him  on 
the  faith  of  the  said  dock-warrants;  and  that  the  defendant  had  no 
notice  that  the  factor  was  not  the  actual  owner;  it  was  held  that 
the  plaintiffs,  by  simply  traversing  the  allegation  that  the  defendant 
advanced  the  money  on  the  faith  of  the  dock- warrants,  were  do- 
barred  from  proving  that  the  dock- warrants  were  not  deposited  at 
the  time  of  the  advance,  and  were  not,  in  fact,  then  in  existence.'' 

§  827.  Under  order  XXXII ,  Rule  6,  of  the  Rules  of  the  Supreme 
Court,  1883,  "  any  party  may,  at  any  stage  of  a  cause  or  matter, 
where  admissions  of  fact  have  been  made,  either  on  the  pleadings,  or 
otherwise,  apply  to  the  court  or  a  judge  for  such  judgment  or  order 
as,  upon  such  admissions  he  may  be  entitled  to,  without  waiting 
for  the  determination  of  any  other  question  between  the  parties; 
and  the  court  or  a  judge  may  upon  such  application  make  such 


1  Bennion  v.  Davison,  3  M.  &  ^Y.  179,  182,  183,  per  Tarke,  B. ;  recognised 
by  Alderson,  B.,  in  Dnnford  r.  Trattles,  12  M.  Sc  "W.  532.  See,  also.  Grew  v. 
Hill,  3  Ex.  R.  801;    6  Dowl.  Si  L.  664,  S.  C. 

2  Bonzi  V.  Stewart,  4  U.  Sc  Or.  295.  See,  also.  Carter  v.  James,  13  M.  &  W. 
145,  146,  text  and  note. 

(3581) 


714  ADMISSIONS  BY  DEMURRING   UNDER  OLD  LAW.  [pART  II. 

order,  or  give  such  judgment,  as  the  court  or  judge  may  think  lit.'' 
In  accordance  with  this  rule  the  Lords  Justices  have  held,  that  where, 
in  a  partition  action  the  defendants  had  by  their  statement  of  defence 
admitted  the  facts  stated  in  the  claim  showing  the  plaintiff's  title, 
the  plaintiff  had  a  right, — instead  of  having  the  action  set  down 
for  hearing, — to  an  order  on  motion,  directing  the  usual  inquiries 
as  to  the  portons  interested  in  the  property.'  So,  a  plaintiff 
may  move  for  judgment  upon  admissions,  although  he  has  joined 
issue  on  the  defence,  and  given  notice  of  trial. ^  So,  in  an  action 
between  partners,^  and  in  one  between  principal  and  agent,'  an 
order  for  an  account  and  for  the  delivery  of  securities  has  been 
made  on  motion  before  the  hearing,  the  judge  acting  solely  on  the 
admissions  contained  in  the  pleadings.''  But  in  cases  under  this 
rule,  as  the  judge  has  a  discretion  whether  he  will  grant  relief  on 
motion  or  not,  he  will  seldom  be  induced  to  take  that  step  when 
any  question  of  difficulty  is  raised  ;  neither  will  the  Court  of 
Appeal,  except  in  a  clear  case  of  error,  interfere  with  the  exercise 
of  the  judge's  discretion.*^ 

§  828.'  Under  the  old  rules  of  pleading,  a  demurrer  used  to  be 
regarded  by  Courts  of  Equity  as  simply  raising  the  question  of  law 
without  any  admission  of  the  truth  of  the  allegations  contained  in 
the  bill;  but  in  Courts  of  Law  its  operation  was  widely  different; 
for  there  it  was  held  to  amount  to  an  absolute  admission  of  the 
facts  stated  in  the  paragraphs  demurred  to.'  The  New  Rules  of 
1883  have  rendered  this  discrepancy  of  no  further  importance,  for 
they  have  cut  the  Gordian  knot  by  abolishing  demurrers  altogether. 
The  modern  proceedings  in  lieu  of  demurrers  are,  in  Order  XXV. 
R.  2,  thus  explained- — ''Any   party  shall  be  entitled  to  raise  by 

1  Gilbert  v.  Smith,  L.  R.,  2  Ch.  D.  C8G;  45  L.  J.,  Ch.   514,  S.   C;  Hether- 
ington  V.  Longrigg,  48  L.  J.,  Ch.  171,  per  Hall,  Y.-C. 
■     ■•'  Brown  v.  Pearson,  L.  R.,  21  Ch.  D.  716,  per  Fry,  J. 

3  Turquand  v.  Wilson,  L.  R.,  1  Ch.  D.  85;  45  L.  J..  Ch.  104.  S.  C. 

♦  Rumsey  v.  Reade,  L.  R.,  1  Ch.  D.  46:i;  45  [..  J.,  Ch.  489,  S.  C. 

^  See,  al.so,  Jenkins  v.  Davies,  L.  R.,  1  Ch.  D.  696;  In  re  Smith's  estate, 
Bridson  v.  Smith,  24  W.  R.,  Ch.  D.  392,  per  Hall,  V.-C;  In  re  Barker's 
Estate,  L.  Q.,  10  Ch.  D.  162,  per  Hall,  V.-C. 

«  Mellor  V.  Sidebottom,  46  L.  J.,  Ch.  398;   L.  R.,  5  Ch.  D.  342,  S.  C. 

'  See  Metrop.  Ry.  Co.  i'.  Defiles,  L.  R.,  2  C^.  B.  D.  387,  and  Rules  of  1875, 
Ord.  XXVIII. 

(3582) 


CHAP.  XIV.]      ADMISSIONS  IN  PLEADING  UNDER  NEW  RULES.  715 

bis  pleading  any  point  of  law,  and  any  point  bo  raised  shall  be 
disposed  of  by  the  judge  who  tries  the  cause,  at  or  after  the  trial; 
provided  that,  by  consent  of  parties,  or  by  order  of  the  court  or  a 
judge  on  the  application  of  either  party,  the  same  may  be  set  down 
for  hearing,  and  disposed  of  at  any  time  before  the  trial."  ' 

§  829.  The  Rules  of  the  Supreme  Court  farther  provide,  by 
Order  XXVII.,  Rule  13,  that  "if  the  plaintiff  does  not  deliver  a 
reply,  or  any  party  does  not  deliver  any  subsequent  pleading  within 
the  period  allowed  for  that  purpose,  the  pleadings  shall  be  deemed 
to  be  closed  at  the  expiration  of  that  period,  and  all  the  material 
statements  of  fact  in  the  pleading  last  delivered  shall  be  deemed  to 
have  been  denied  and* put  in  issue."  ^ 

§  830.  Irrespective  of  the  new  Rules  of  pleading,  the  Legislature 
has,  in  one  somewhat  remarkable  case,  provided,  that  the  omission 
to  plead  a  special  defence  shall  operate  as  a  conclusive  presumption 
of  liability.  Allusion  is  here  made  to  the  Married  Woman's  Pro- 
perty Act,  1874,^^  which, — after  enacting  with  respect  to  marriages 
that  have  taken  place  since  the  30th  July  in  that  year,  that 
husbands  and  wives  may  be  jointly  sued  for  debts  incurred  or  torts 
committed  by  the  wife  before  marriage,  but  that  the  husband  shall 
be  liable  to  the  extent  only  of  the  assets  therein  specified,* — goes 
on  to  provide,  that,  if  no  plea  denying  liability  be  pleaded,  "  the 
husband  shall  be  deemed  to  have  confessed  his  liability  so  far  as 
assets  are  concerned."  '^  Since  the  1st  January,  1883,  the  passage 
just  cited  is  only  operative  with  respect  to  parties  married  before 
that  date.** 

§  831.  It  remains  here  to  notice,  in  connexion  with  this  subject, 
the  effect  of  paying  money  into  court,  and  of  tendering  compensation. 


'  See  also  RR.  3,  4,  and  5  of  same  Order.  Burstall  v.  Beyfus,  53  L.  J.,  Ch. 
565,  per  Ct.  of  App.;  L.  R.,  26  Ch.  D.  35,  S.  C. 

'■^  This  rule  deserves  special  notice,  as  heing  directly  opposed  to  the 
practice  which  prevailed  under  the  Rules  of  1875.  See  Ord.  XXIX.,  R.  12, 
ol  those  Rules.  See,  also,  Ord.  XIX.,  R.  13  of  the  Rules  of  1883,  cited  ante, 
?  824. 

3  37  & 38  v.,  c.  50.  *  ?n,  2,  and  .5. 

6  §  2.  See  Matthews  v.  Whittle,  L.  R.,  13  Ch.  D.  811,  per  Jessel,  M.  R.;  49 
L.  J.,  Ch.  359,  S.  C. 

«  45  &  46  v.,  c.  75,  ^  14,  15. 

(3583) 


760 


71G  ADMISSION  BY  PAYING   MONEY  INTO  COURT.  [pART  II. 

Payment  of  moaey  into  court, — wbicb,  (except  in  actions  brought 
against  magistrates,'  and,  perhaps,  in  one  or  two  other  suits,^) 
must,  unless  made  before  delivering  a  defence,^  now  be  pleaded  in 
all  cases,  but  may  be  pleaded  eitber  to  the  whole  or  to  part  only  of 
the  plaintiff's  claim, — may  be  made,  as  of  course,  in  any*  action 
which  is  brought  to  recover  a  debt  or  damages.^  Amends  may  also 
be  paid  into  court  in  some  special  actions  under  the  provisions  of 
particular  statutes.  For  instance,  in  an  action  for  a  libel  contained 
in  any  newspaper  or  other  periodical  publication,  whether  in  England 
or  Ireland,  the  defendant  may  plead  that  the  language  complained  of 
was  inserted  without  actual  malice,  and  without  gross  negligence,  and 
that  at  the  earliest  opportunity  he  had  published,  or,  in  some  cases, 
had  offered  to  publish,  an  ample  apology.*  This  statutable  plea 
must  then  terminate  with  an  allegation  of  the  payment  of  money 
into  court  by  way  of  amends,  for  otherwise  the  plaintiff  may  treat 
it  as  a  mere  nullity.'^  Many  other  statutes  authorise  the  tender  of 
amends  and  pleas  of  payment  of  money  into  court,  when  actions  are 
brought  against  persons  for  acts  done  by  them  either  in  execution 

1  11  &  12  v.,  c.  44,  ?  11,  cited  ante,  |  315,  n.  K 

^  See  ante,  ^  315,  ad  fin. 

■'  Rules  of  Sup.  Ct.,  1883,  Ord.  XXII.,  R.  4,  which  points  out  the  course 
of  proceeding  in  that  case. 

*  See  Hawkslej^  v.  Bradshaw,  49  L.  J.,  Q.  B.  333,  per  Ct.  of  App.;  L.  R., 
5  Q.  B.  D.  302,  S.  C. 

5  Rules  of  Sup.  Ct.,  1883,  Ord.  XXII.,  R.  1,  provides,  that  "Where  any 
action  is  brought  to  recover  a  debt  or  damages,  any  defendant  may,  before  or 
at  the  time  of  delivering  his  defence,  or  at  any  later  time,  by  leave  of  the 
court  or  a  judge,  pay  into  court  a  sum  of  money  by  way  of  satisfaction, 
which  shall  be  taken  to  admit  the  claim  or  cause  of  action  in  respect  of  which 
the  payment  is  made;  or  he  may,  with  a  defence  denying  liability,  (except 
in  actions  or  counterclaims  for  libel  or  slander),  pay  money  into  court" 
subject  to  special  provisions.  R.  2  provides  that  "  Payment  into  court  shall 
be  signified  in  the  defence,  and  the  claim  or  cause  of  action,  in  satisfaction 
of  which  such  payment  is  made,  shall  be  specified  therein."  K.  4  regulates 
the  practice  where  defendant  pays  money  into  court  before  delivering  his 
defence;  RR.  5  and  6  explain  how  the  money  is  to  be  paid  out  of  court, 
while  R.  7 — by  imposing  upon  the  plaintiff  the  duty  of  giving  the  defendant 
a  special  notice — exposes  him  to  the  risk  of  losing  his  costs  in  the  event  of 
his  neglecting  to  comply  with  that  Rule.  See  Langridge  v.  Campbell,  L.  R., 
2  Ex.  D.  281;  46  L.  J.,  Ex.  277,  S.  C,  as  explained  by  Buckton  v.  Higgs, 
L.  R.,  4  Ex.  D.  174.  See,  al.so.  Greaves  v.  Fleming,  L.  R.,  4  Q.  B.  D.  22G; 
48  L.  J.,  Q.   B.  335,  S.  C. 

6  See  6  &  7  v.,  c.  96,  ^  2,  as  amended  by  42  &  43  V.,  c.  59;  and  8  &  9 
v.,  c.  75,  ?  2,  as  to  Eng. ;  and  8  &  9  V.,  c.  75,  U  1  and  2  as  to  Irel. 

(3584) 


CHAP.  XIV.]         ADMISSION  DY  PAYING  MONEY  INTO  COniT.  717 

of  their  offices,  or  in  pursuance  or  under  ibe  autbority  i)l  Acts  of 
Parliament;^  and  among  these  may  be  mentioned  the  Act  passed 
in  1848  for  the  protection  of  justices,"  the  Acts  of  1861,  which 
consolidate  the  law  relating  to  larceny,  malicious  injuries,  and  coin,* 
the  Seamen's  Clothing  Act,  1809,*  the  Contagious  Diseases, 
Animals,  Act,  1878,^^  the  Army  Act,  1881,*^  and  the  Militia  Act, 
1882/ 

§  832.  The  salutary  effect  of  these  regulations  was  at  one  time 
much  impaired  by  regarding  payment  of  money  into  court  as 
an  admission  of  the  cause  of  .action.  This  mischievous  doctrine  is 
at  length  happily  exploded;  and,  although  such  payment,  when 
unaccompanied  by  any  defence  denying  liability,  is  still  "  taken  to 
admit  the  claim  or  cause  of  action  in  respect  of  which  the  payment 
is  made,"  defendants  may  now  in  any  cause,  except  in  actions  or 
counterclaims  for  libel  or  slander,  plead  payment  of  money  into 
court  together  with  any  other  pleas,  either  denying  the  plaintiff's 
right  of  action,  or  setting  np  some  special  defence.**  The  exception 
just  cited  would  seem  to  have  been  aimed  specially  at  the  case  of 
Hawkesley  v.  Bradshaw."  There,  to  an  action  for  libel  published 
in  a  newspaper,  the  defendant  was  allowed  to  plead,  first,  a 
justification  on  the  ground  that  the  libel  was  true,  and  next,  an 
apology,  together  with  a  payment  into  court  of  40s.  by  way  of 
amends. 

§  838.'"  When  judicial  admissions, — by  which  are  meant  admis-    §  768 
sions  entered  into  in  the  due  course  of  legal  proceedings, — have 
been  made  through  inadvertence  or  mistake,  the  court,  in  its    dis- 
cretion, will  relieve  the  party  from  the  consequences  of  his  error, 


1  See  ante,  H  311—315. 

Ml  &  12  v.,  c.  44,   ?  11,  cited  ante,   ?  315,  n.  ^. 
3  24  &  25  v.,  c.  96,   ^  113;  c.  97,   §  71;  c.  99,  I  33. 
*  32  &  33  v.,  c.  57,   I  6. 
5  41  &  42  v.,  c.  74,  I  55,  subs.  2. 
"  44  &  45  v.,  c.  58,   I  170,  subs.  2. 
M5  &  46  v.,   c.  49,   \  46,  subs.  3. 

8  Rules  of  Sup.  Ct.,  1883,  Ord.  XXII.,  R.  1,  cited,  ante,  §  831,  n.  ^j  Berdan 
V.  Greenwood,  L.  R.,  3  Ex.  D.  251,  per  Ct.  of  App.;  47  L.  J.,  Ex.  628,  S.  C. 
»  L.  R.,  5  Q.  B.  D.  302;  per  Ct.  of  App.;  49  L.  J.,  Q.  B.  333,  S.  C. 
"  Gr.  Ev.  §  206,  nearly  verbatim. 

(3585) 


718  ADMISSIONS  MADE  BY  MISTAKE.  [PART  II. 

by  ordering  a  repleader,  or  by  permitting  an  amendment,  or  by 
discharging  the  case  stated,  or  the  rule,  or  the  agreement,  if 
made  in  court.'  Agreements,  too,  made  out  of  court  between 
solicitors,  concerning  the  course  of  proceedings  in  court,  are,  in 
effect,  equally  under  the  court's  control,  by  means  of  its  coercive 
power  over  the  solicitor  in  all  matters  relating  to  professional 
character  and  conduct.  But,  in  all  these  cases,  the  party  will  be 
held  to  his  admission,  unless  it  clearly  appear  that  he  has  acted 
through  mistake.^ 

§  839.^  Every  admission,  which  has  been  made  with  the  inten- 
tion of  being  acted  upon,  and  which  has  been  acted  upon  by 
another  person,  is  conclusive  against  the  party  making  it,  in  all 
cases  between  him  and  the  individual  whose  conduct  he  has  thus 
influenced.  It  is  of  no  importance,  whether  such  admission  be 
Diade  in  express  language  to  the  person  who  acts  upon  it,  or  be 
implied  from  the  general  conduct  of  the  party  making  it;  for,  in 
the  latter  case,  the  implied  declaration  will  be  considered  as 
having  been  addressed  to  every  one  in  particular,  who  may  have 
had  occasion  to  act  upon  it:  and  the  rule  of  law  is  clear,  that, 
where  one  by  his  words  or  conduct  tcilfxdly  causes  another  to 
believe  in  the  existence  of  a  certain  state  of  things,  and  induces 
him  to  act  on  that  belief,  so  as  to  alter  his  own  previous  position, 
the  former  is  concluded  from  averring  against  the  latter  a  different 
state  of  things  as  existing  at  the  same  time.*  Indeed,  the  prin- 
ciple may  be  laid  down  still  more  broadly,  as  precluding  any  party, 
who  negligently  or  culpably    stands  by,    and    allows  another    to 


'  "Nonfatetur,  qui  errat,  nisi  jus ignoravit."  Dig.  lib.  42,  tit.  2,  1.2.  "Si 
vero  per  errorem  fuerit  facta  ipsa  confe.ssio  (scil.  ab  advocato),  elienti  concessum 
est,  errore  probato,  usque  ad  sententiam  revocare. "  1  Masc.  de  Prob.,  quaist. 
7,  n.  63;  id.  n.  19,  20,  21,  22;  id.  concl.  348,  per  tot. 

2  See  Pearse  v.  Grove,  3  Atk.  523,  per  Ld.  Hardwicke;Amb.  65,  S.  C.  The 
Roman  law  was  administered  in  the  same  spirit.  "  Si  is,  cum  quo  Lege  Aquilia 
agitur,  confessus  est  servum  occidisse,  licet  non  occiderit,  si  tamen  oc-cisus  sit 
homo,  e.x  confesso  tenetur."  Dig.  lib.  42,  tit.  2,  1.  4;  id.  1.  6.  See,  also.  Van 
Leeuw.  Comm.,  B.  V.  ch.  21;  Everb.  Cone.  155,  n.  3.  "  Confessus  pro  judicato 
est."     Dig.  lib.  42,  tit.  2.  1.  1. 

*  Gr.  Ev.  I  207,  in  part. 

*  Per  Ld.  Denman,  in  Pickard  v.  Sears,  6  A.  &  E.  474;  recognised  by  "Wood 
V.-C,  in  Att.-Gen.  v.  Stephens,  1  Kay  &  J.  748,  749. 

(358G) 


CHAP.  XIV.]  ADMISSIONS  ACTED  UPON  BY  OTHERS.  719 

contract  on  the  faith  and  understanding  of  a  fact  which  he  can 
contradict,  from  disputing  that  fact  in  an  action  against  the  person, 
whom  he  has  himself  assisted  in  deceiving.'  In  such  case  the 
party  is  estopped,  on  the  grounds  of  public  policy  and  good  faith, 
from  repudiating  his  own  representations.^ 

§  840.  In  the  case  of  Freeman  v.  Cooke,^  Lord  Wensleydale,  i  '''^ 
while  explaining  this  rule,  pointedly  observed: — "By  the  term 
'  wilfully,'  we  must  understand,  if  not  that  the  party  represents 
that  to  be  true  which  he  knows  to  be  untrue,  at  least  that  he 
means  his  representations  to  be  acted  upon,  and  that  it  is  acted 
upon  accordingly;  and  if,  whatever  a  man's  real  intention  may 
be,  he  so  conducts  himself  that  a  reasonable  man  would  take  the 
representation  to  be  true,  and  believe  that  it  was  meant  that  he 
should  act  upon  it,  and  did  act  upon  it  as  true,  the  party  making 
the  representation  would  be  equally  precluded  from  contesting  its 
truth;*  and  conduct  by  negligence  or  omission,  where  there  is  a 
duty  cast  upon  a  person  by  usage  of  trade  or  otherwise  to  disclose 
the  truth,  may  often  have  the  same  effect; — as,  for  instance,  a 
retiring  partner  omitting  to  inform  his  customers  of  the  fact,  in 
the  usual  mode,  that  the  continuing  partners  were  no  longer  autho- 
rised to  act  as  his  agents,  is  bound  by  all  contracts  made  by  them 
with  third  persons  on  the  faith  of  their  being  so  authorised."  ^ 


'  Per  Ld.  Denman,  in  Gregg  v.  Wells,  10  A.  &  E.  98;  recognised  by  Parke, 
B.,  in  Harrison  v.  Wright,  1.3  M.  &  W.  820. 

2  See  ante,  §  89,  et  seq.  •''  2  Ex.  R.  663;  6  Dowl.  &  L.  190,  S.  C. 

*  The  rule,  as  here  enunciated,  was  expressly  adopted  by  the  Court  of  Ex. 
in  Cornish  v.  Abington,  4  H.  &  N.  549.  See,  too.  Sweeny  v.  Promoter  Life 
Ass.  Co.,  14  Jr.  Law  R.,  N.  S.  476,  486—493;  Thomas  u  Brown,  L.  R.,  1  Q. 
B.  D.  714;  45  L.  J.,  Q.  B.  811,  S.  C. ;  and  M'Kenzie  v.  British  Linen  Co., 
L.  R.,  6  App.  Cas.  82,  H.  L.   (Sc). 

^  In  Howard  v.  Hudson,  2  E.  &  B.  1,  Ld.  Campbell  laid  down  a  more 
restricted  rule,  observing: — "The  party  setting  up  such  a  bar  to  the  reception 
of  the  truth  must  show,  both  that  there  was  a  wiJful  intent  to  make  him  act 
on  the  faith  of  the  representation,  and  that  he  did  so  act;  "  and  Crompton,  J., 
adds: — "The  rule  takes  in  all  the  important  commercial  cases  in  which  a 
representation  is  made,  not  wilfully  in  any  bad  sense  of  the  word,  not  malo 
animo,  but  so  far  wilfully  that  the  party  making  the  representation  on  which 
the  other  acts  means  it  to  be  acted  upon  in  that  way.  That  is  the  true 
criterion."  See  further  on  this  subject,  Foster  v.  Mentor  Life  Ass.  Co.,  3 
E.  &  B.  48. 

(3587) 


720  ADMISSIONS  ACTED  UPON  BY  OTHERS.  [PART  II. 

§  841.  Again,  if  a  party  having  a  secret  equity,  chooses  to  §  771 
stand  by,  and  permit  the  apparent  owner  to  deal  with  others  as  if 
he  were  the  absolute  owner,  he  shall  not  be  permitted  to  assert 
such  secret  equity  against  a  title  founded  on  such  apparent  owner- 
ship.* Many  decisions  have  been  founded  upon  this  principle,  but 
the  case  of  the  Duke  of  Beaufort  v.  Neald"-  will  sufficiently  serve 
to  illustrate  it.  There,  the  Duke  had  signed,  and  put  into  the 
hands  of  his  agent,  an  authority  to  consent  to  any  exchanges  under 
an  Inclosure  Act,  but  had  directed  him  not  to  act  upon  this 
authority  excepting  under  certain  circumstances.  The  agent,  in 
breach  of  his  private  instructions,  having  produced  the  authority 
and  agreed  to  an  exchange  not  under  the  stipulated  circum- 
stances, the  Duke  repudiated  the  agreement,  but  the  House  of 
Lords  held  that  he  was  clearly  bound  thereby.  The  Courts  have 
also  acted  upon  this  doctrine  on  several  occasions,  where  nego- 
tiations have  been  entered  into  preparatory  to  marriage;  and  the 
abstract  rule  deducible  from  the  authorities  is,  that,  whenever  a 
representation  ^  of  some  fact, — as  contradistinguished  from  a  mere 
representation  of  intention  *, — has  been  made  by  one  party  for  the 
purpose  of  influencing  the  conduct  of  another,  and  has  been  acted 
upon  by  the  latter,  this  will,  in  general,  be  sufficient  to  entitle  him 
to  the  assistance  of  the  court  for  the  purpose  of  realising  such 
representation.^ 

1  Mangles  v.  Dixon,  1  M.  &  Gord.  446,  per  Ltl.  Cottenliam;  1  Hall  &  T 
550,  S.  C.  See,  also,  Att.-Gen.  v.  Naylor,  33  L.  J.,  Ch.  151,  per  Wood,  V.-C; 
Ramsden  v.  Dyson,  1  Law  Rep.,  H.  L.  129;  Rolt  v.  White,  3  De  Gex,  J.  &  S. 
360,  365,  per  Ld.  Westbury. 

2  12  CI.  &  Fin.  249.  See  Graham  v.  Birkenhead  Ry.  Co.,  2  M.  &  Gord.  146; 
2  Hall  &  T.  450,  S.  C. ;  Kent  v.  Jackson,  14  Beav.  384,  per  Romilly,  M.  R. ; 
Triekett  r.  Tomlinson,  13  Com.  B.,  N.  S.  663;  Pole  v.  Leask,  33  L.  J.,  Ch. 
155,  per  Dom.  Proc. 

^  Ld.  Ci'anworth  is  said  to  have  held  that  the  rule  does  not  apply  unless 
there  be  vusrcjyrescnfation.  Sed  qu.  See  Money  v.  Jordon,  15  Beav.  372,  387, 
n.;  Pulsford  v.  Richards,  17  Beav.  94,  95. 

*  Jordan  v.  Money,  5  H.  of  L,,  Cas.  185,  per  Ld.  Cranw>!;rth,  C,  and  Ld. 
Brougham,  in  Dom.  Proc,  Ld.  St.  Leonards  diss.,  overruling  a  decision  of 
Romilly,  M.  R.,  in  Money  v.  Jorden,  15  Beav.  372.  SeeMaddisonw.  Alderson, 
L.  R.,  8  App.  Cas.  467,  per  Dom.  Proc;  52  L.  J.,  Q.  B.  737,  S.  C;  affirm. 
S.  C,  per  Ct.  of  App.;  .50  L.  J.,  Q.  B.  466;  and  L.  R.,  7  Q.  B.  D.  174;  and 
overruling  S.  C,  nom.  Alderson  v.  Maddison,  L.  R.,  5  Ex.  D.  293;  and  49 
L.  J.,  Ex.  501,  per  Stephen,  J.;  and  questioning  Loffus  v.  Maw,  3  Gifif. 
592,  604,  per  Stuart,  V.-C.     See,  also,  post,  ?,  1043. 

^  Hammersley  v.  Baron  de  Biel,  12  CI.  &  Fin.  45,  62,   n.,  per  Ld.  Cotten- 

(3588) 


CHAP.  XIV.]  ADMISSIONS  ACTED  UPON  BY  OTHERS.  721 

§  842.^  The  same  rule  is  familiarly  illustrated  by  the  case  g  772 
of  a  man  cohabiting  with  a  mistress,  and  treating  her  in  the  face  of 
the  world  as  his  wife.  Here,  though  he  thereby  acquires  no  rights 
against  others,  they  possibly  may  do  so  against  him.  For  instance, 
if  the  woman  duiing  such  cohabitation  be  supplied  with  goods 
ostensibly  for  the  use  of  the  joint  household,  and  the  reputed 
husband  be  sued  for  their  price,  he  will  not  be  permitted  to  disprove 
the  marriage,  but  the  jury  will  be  justified,  as  in  the  case  of  a  real 
wife,  in  dealing  with  the  question  as  one  of  ordinary  domestic 
agency."  It  must  not,  however,  here  be  forgotten,  that  the  old 
doctrine  of  presumptive  agency,  as  applicable  to  the  relationship  of 
husbands  and  wives,  has  been  recently  encroached  npon  to  an  un- 
defined extent,  if  not  actually  set  aside,  by  "  The  Married  Women's 
Property  Act,  1882,"^  which  in  §  1,  subs.  3,  enacts,  that  every  con- 
tract entered  into,  since  the  1st  of  January,  1883,  "by  a  married 
woman,  shall  be  deemed  to  be  a  contract  entered  into  by  her  with 
respect  to  and  to  bind  her  separate  property,  unless  the  contrary  he 
shoion." 


§  843.'^  Where  a  person  knowingly  permits  his  name  to  be  used    §  773 
as  one  of  the  partners  in  a  trading  firm,  or  an  existing  joint-stock 
company,  under  such  circumstance  of    publicity  as    to  satisfy  the 
jury  that  a  stranger  knew  of  it,  and  believed  him  to  be  a  partner, 

ham  ;  88,  per  Ld.  Campbell  ;  Neville  v.  Wilkinson,  1  Br.  C.  C.  543  ;  Moute- 
fiori  V.  Montefiori,  1  W.  Bl.  3()3  ;  Bentley  v.  Mackay,  31  Beav.  155,  per  Romilly, 
M.  R.:  Laverf.  Fielder,  32  L.  J.,  Ch.  365,  per  Romilly,  M.  R. ;  32  Beav.  1, 
S.  C. ;  Gale  v.  Lindo,  1  Vern.  475;  Jorden  r.  Money,  5  H.  of  L.  Cas.  185  ; 
Money  v.  Jorden,  15  Beav.  372  ;  Hntton  v.  Rossiter,  7  Ds  Gex,  M.  &  G.  9  ; 
Pulsford  V.  Richards,  17  Beav.  87,  94,  per  Romilly,  M.  R. ;  Yeomans  v. 
Williams,  1  Law  Rep.,  Eq.  184  ;  Hodgson  v.  Hutchinson,  5  Vin.  Abr.  522, 
Cookes  r.  Mascall,  2  Vern.  200;  Wankford  v.  Fotherley,  id.  322;  Luders  v. 
Anstey,  4  Ves.  501  ;  Middleton  v.  Pollock,  Ex  p.  Wetherall,  L.  R.,  4  Ch.  D. 
49;  46  L.  J.,  Ch.  39,  S.  C.  See  Wright  v.  Snowe,  2  De  Gex  &  Sm.  321  ; 
Maunsell  v.  White,  4  H.  of  L.  Cas.  1039  ;  Bold  v.  Hutchinson,  24  L.  J.,  Ch. 
285,  per  Romilly,  M.  R.;  2J  Beav.  250,  S.  C;  5  De  Gex,  M.  &  G.  558,  S.  C, 
on  appeal  ;  Traill  v.  Baring,  33  L.  J.,  Ch.  521  ;  4  Giff.  485,  S.  C. 

'  Gr.  Ev.  ^  207,  in  part,  as  to  first  7  lines. 

=>  Watson  V.  Threlkeld,  2  Esp.  637  ;  Robinson  v.  Nahon,  1  Camp.  245 ; 
Munro  v.  De  Chemant,  4  Camp.  215.  See  ante,  ?  192.  Also,  Mace  v.  Cadell, 
1  Cowp.  233,  recognised  in  Batthews  v.  Galindo,  4  Bing.  613. 

•'  45  &  46  v.,  c.  75.     See  Myles  v.  Burton,  14  L.  R.  Ir.  258. 

♦  Gr.  Ev.  207,  in  part. 

(3589) 


722  ADMISSIONS  ACTED  UPON  BY  OTHERS.  [PART  II. 

he  is  liable  to  such  stranger  in  all  transactions,  in  which  the  latter 
engaged  and  gave  credit  upon  the  faith  of  his  being  such  partner.' 
So,  although  the  mere  fact  of  a  person  agreeing  to  become  a 
member  of  the  provisional  committee  of  an  intended  railway 
company,  or  even  the  fact  of  such  person  authorising  his  name  to 
be  published  in  a  prospectus,  which  contains  nothing  more  than  the 
names  of  the  provisional  committee  men,  will  not  render  him  liable 
for  contracts  made  by  the  other  members  or  by  the  solicitor,  for  the 
purpose  of  promoting  the  objects  in  view  ;  because  such  an  intended 
association  does  not  amount  to  a  partnership,  as  it  constitutes  no 
agreement  to  share  in  profit  and  loss  ;  ^ — still,  if  evidence  be  forth- 
coming that  such  person  has  acted  with  relation  to  the  proposed 
scheme,  as  by  attending  meetings,  giving  directions,  and  the  like, 
it  will  be  for  the  jury  to  determine*  whether  he  has  not  thereby 
authorised  the  managing  committee,  or  the  other  members  of  the 
provisional  committee,  or  the  solicitor  or  secretary  of  the  intended 
company,  to  pledge  his  credit  for  the  necessary  and  ordinary  ex- 
penses to  be  incurred  in  forming  the  company  ;  and  if  they  decide 
this  question  in  the  affirmative,  they  may  then  give  a  verdict 
against  him,  on  further  finding  that  the  work  was  done,  and  the 
credit  given,  on  the  faith  of  his  being  liable.* 

§  844  On  the  same  principle,  if  a  man,  by  holding  out  false 
colours,  induces  a  railway  company  to  register  him  as  a  proprietor 
of  shares,  and,  subsequently,  to  bring  an  action  against  him  for 
calls  on  such  shares,  he  will  be  precluded  from  disputing  the  validity 

1  Per  Parke,  J.,  in  Dickinson  v.  Valpy,  10  B.  &  C.  128,  140,  141  ;  5  M. 
&  R.  126,  S.  C. ;  Wood  v.  D.  of  Argyll,  6  M.  &  Gr.  932,  per  Cresswell,  J. ; 
Harrison  v.  Heathorn,  6  M.  &  Gr.  81,  133,  134,  per  Tindal,  C.  J.;  Fox  v. 
Clifton,  6  Bing.  776,  794,  per  Tindal,  C.  J.  See,  also,  Kell  v.  Nainby,  10 
B.  &  C.  20  ;  Guidon  v.  Robson,  2  Camp.  302,  per  Ld.  Ellenborough. 

2  Reynell  r.  Lewis,  &  Wyld  r.  Hopkins,  15  M.  &  W.  517.  See  Ex  parte 
Cottle,"  2  M.  &  Gord.  185  ;  2  Hall  &  T.  382,  S.  C. ;  Ex  parte  Roberts,  2  M.  & 
Gord.  192  :  2  Hall  &  T.  391,  S.  C;  Norris  r.  Cottle,  2  H.  of  L.  Cas.  647  ; 
Hutton  V.  Upfill,  id.  674  ;  Bright  v.  Hutton,  &  Hutton  v.  Bright,  3  H.  of  L. 
Cas.  341  ;  M'Ewan  v.  Campbell,  2  Macq.  Sc.  Cas.  H.  of  I>.  499. 

^  Williams  v.  Pigott,  2  Ex.  K.  201  ;  Bright  v.  Hutton,  &  Hutton  v.  Bright, 
3H.  of  L.  Cas.  341. 

*  Reynell  v.  Lewis,  &  Wyld  v.  Hopkins,  15  M.  &  W.  517;  Lake  u  D.  of 
Argyll^  6  Q.  B.  477.  See  Higgins  v.  Hopkins,  3  Ex.  R.  163  ;  Burnside  v.  Day- 
rell,  id.  224;  Bailey  r.  Macanlay,  13  Q.  B.  815;  Rennie  v.  Clarke,  5  Ex.  R. 
292  ;  Rennie  v.  Wynn,  4  Ex.  R.  691  ;  Ex  parte  Besley,  2  M.  &  Gord.  176. 

(3590) 


CHAP.  XIV.  ]  ADMISSIONS  ACTED  UPON  BY  OTHERS.  723 

of  the  transfer  to  Lim,  or  from  otherwise  denying  his  character  as  a 
shareholder.^  So,  when  a  company  had  registered  a  person  as  a 
shareholder,  and  had  induced  him,  on  the  faith  of  such  registration, 
to  pay  a  call,  they  were  not  allowed  to  dispute  his  title  to  the 
shares."  An  infant,  too,  who  has  actually  deceived  a  tradesman  by 
fraudulently  representing  himself  to  be  of  full  age,  and  who  has 
thus  obtained  credit  for  goods  supplied  to  him,  will  be  held  bound 
by  his  statement,^  and  liable  to  pay  the  debt.  So,  also,  a  person 
who  has  assumed  to  act  as  a  broker  of  the  city  of  London,  cannot, 
as  against  a  party  who  has  employed  him,  protect  himself  from  a 
discovery  of  his  dealings  with  such  party,  on  the  ground  that  his 
answer  may  expose  him  to  penalties  for  having  acted  as  a  broker 
without  being  duly  qualified.* 

§  845.  Where  parties  have  agreed  to  act  upon  an  assumed  state  §  774 
of  facts,  their  rights  between  themselves  will  be  made  to  depend  on 
such  assumption,  and  not  upon  the  truth. ^  Again,  if  a  party  has 
taken  advantage  of,  or  voluntarily  acted  under,  the  bankrupt  or  in- 
solvent laws,  he  shall  not  be  permitted,  as  against  parties  to  the 
proceedings,    to   deny   their  regularity.®      So,  the    grantee  of  an 

1  Sheffield  &  Manch.  Ry.  Co.  v.  Woodcock,  7  M.  &  W.  574,  582,  583  ; 
Cheltenham  &  Gt.  West.  Union  Ry.  Co.  v.  Daniel,  2  Q.  B.  281,  292;  In  re 
North  of  Eng.  Jt.  St.  Bk.  Co.,  Ex  parte  Straffon's  Exors.,  22  L.  J.,  Ch.  194, 
202,  203;  Taylor  v.  Hughes,  2  Jones  &  Lat.  24.  See  Swan  r.  North  Brit. 
Austral.  Co.,  7  H.  &  N.  603;  S.  C.  in  Ex.  Ch.,  2  New  R.  521;  2  H.  &  C. 
175;  and  32  L.  J.,  Ex.  273. 

^  Hart?;.  Frontino,  &c.,  Gold  Mining  Co.,  5  Law  Rep.,  Ex.  Ill;  39  L.  J., 
Ex.  93,  S.  C;  Re  Bahia  &  Francisco  Ry.  Co.  v.  Tritten,  37  L.  J.,  Q.  B.,  137; 

3  Law  Rep.,  Q.  B.  584;  9  B.  &  S.  844,  S.  C.  See,  also,  Webb  v.  Heme  Bay 
Improving  Com.,  39  L.  J.,  Q.  B.  221;  5  Law  Rep.,  Q.  B.  642,  S.  C. ;  and 
Simm  V.  Anglo-Amer.  Teleg.  Co.,  49  L.  J.,  Ch.  392,  per  Ct.  of  App. 

^  Ex  parte  Unity  Jt.  St.  Mutual  Bank.  Associat.,  In  re  King.  3  De  Gex 
&  J.  63;  Nelson  v.  Stock er,  28  L.  J.,  Ch.  760;  4  De  Gex  &  J.  458,  S.  C.  The 
old  common  law  rule,  as  recognised  in  the  following  cases,  is  no  longer  law. 
Price  V.  Hewett,  8  Ex.  R.  146;  Liverpool  Adelphi  Loan  Associat.  v.  Fair- 
hurst,  9  Ex.  R.  423,  430;  Bartlett  v.  Wells,  31  L.  J.,  Q.  B.  57;  1  B.  &  S. 
836,  S.  C;  DeRoo  v.  Foster,  12  Com.  B.  N.  S.  272. 

*  Robinson  v.  Kitchin,  21  Beav.  365;  8  De  Gex,  M.  &  G.  88  S.  C;  25  L. 
J.,  Ch.  441,  S.  C;  Green  v.  Weaver,  1  Sim.  404.     See  33  &  34  V.,  c.  60. 

^  M'Cance  v.  Lond.  &  N.  W.  Ry.  Co.,  34  L.  J.,  Ex.  39;  3  H.  &  C.  343,  S.  C. 

*  Like  V.  Howe,  6  Esp.  20;  Clarke  v.   Clarke,  id.   61;  Gouldie  v.  Gunston, 

4  Camp.  381 ;  Watson  v.  Wace,  5  B.  &  C.  153,  explained  in  Heane  v.  Rogers, 
9  B.  &  C.  586,  587;  Mercer  v.  Wise,  3  Esp.  219;  Harmar  v.  Davis,  7  Taunt. 
577;  Flower  r.  Herbert,  2  Ves.  Sen.  .326.     See  ante,  U  817,  818. 

25  LAW  OF  EVin. — v.  II.  (3591) 


724  ADMISSIONS  ACTED  UPON  BY  OTHERS.  [PART  II. 

annuity,  whose  duty  it  was,  under  an  Act  now  repealed,'  to  have  the 
memorial  properly  enrolled,  was  not  allowed  to  take  advantage  of  his 
own  neglect,  and  set  up  the  want  of  enrolment  against  the  grantor, 
although  the  statute  declared  that  in  case  of  non-enrolment  annuity 
deeds  should  be  void."  So,  if  an  agent  or  a  workman  knowingly 
renders  an  untrue  account  to  his  principal  or  employer,  and 
such  account  is  adopted  by  the  party  to  whom  it  is  given,  it  cannot 
afterwards  be  gainsaid  by  the  person  who  rendered  it.'^  So, 
if  a  man  by  his  receipt  acknowledges  that  he  has  received  money 
from  an  agent  on  account  of  his  principal,  and  thereby  accredits 
the  agent  with  the  principal  to  that  amount,  such  receipt  is  con- 
clusive as  to  payment  by  the  agent.*  Therefore,  the  usual  ac- 
knowledgment in  a  policy  of  insurance  of  the  receipt  of  premium 
from  the  assured  is  conclusive  of  the  fact  as  between  the  under- 
writers and  the  assured,  although  not  as  between  the  underwriters 
and  the  broker.^  So,  if  a  person  having  a  right  to  an  estate  permit 
or  encourage  a  purchaser  to  buy  it  of  another,  the  purchaser  shall 
hold  it  against  the  person  who  has  the  right;  ^  and  precisely  the 
same  doctrine  applies  to  personarproperty.'  So,  if  the  owner  of  an 
instrument  which  purports  to  be  transferable  by  delivery,  deposits 
it  with  his  broker  or  banker,  he  will  be  estopped,  as  against  a  bona 
tide  holder  for  value,  from  denying  that  it  was  transferable.** 

§  846.  Trespass,  also,  is  not  maintainable  against  a  sherift's 
officer  who  executes  process  against  a  man  by  a  v.rong  name,  either 

»  53  G.  3,  c.  141,  repealed  by  17  &  18  V.,  c.  90. 

2  Molton  v.  Camroux,  2  Ex.  R.  487;  afif.  in  Ex.  Ch.,  4  Ex.  R.  17. 

*  Cave  V.  Mills,  31  L.  J.,  Ex.  265;  7  H.  &  N.  913,  S.  C;  Skyring  v.  Green- 
wood, 4  B.  &  C.  281;  Shaw  v.  Picton,  id.  715. 

*  3  St.  Ev.  956.  See  Rice  v.  Rice,  2  Drew.  73;  Hunter  v.  Walters,  11  Law 
Rep.,  Eq.  292. 

'  3  St.  Ev.  956;  Dalzell  v.  Mair,  1  Camp.  5.32,  per  Ld.  Ellenborough;  De 
Gaminde  v.  Pigou,  4  Taunt.  246;  Anderson  v.  Thornton,  8  Ex.  R,  428,  per 
Parke,  B. 

«  3  Sug.  V.  &  P.  428,  lOih  ed.;  and  id.  611,  13th  ed.;  recognised  by  the 
court  in  Sandys  v.  Hodgson,  10  A.  &  E.  476.  See,  also,  Ramsden  v.  Dyson, 
1  Law  Rep.,  H.  L.  129;  and  Doe  r.  Groves,  10  Q.  B.  486.  Dixon  v.  Muckle- 
.stone,  L.  R.,  8  Ch.  App.  155;  In  re  Lambert's  estate,  13  L  R.  Ir.  234,  per  Ct.  of 
App. 

'  Pickard  r.  Sears,  6  A.  &  E.  469;  Gregg  v.  Wells,  10  A.  &  E.  90 ;  2 
P.  &  D.  296,  S.  C;  Coles  v.  Bk.  of  England,  10  A.  &  E.  437;  2  P.  &  D. 
.521,  S.  C. 

«  Goodwin  r.  Robarts,  L.  R.,  1  App.  Cas.  476;  10  Ex.  D.  76,  337,  S.  C.  ; 
Rumball  v.  Metrop.  Bk.,  L.  R.,  2  Ex.  D.  194;  46  L.  J.,  Q.  B.  346,  S.  C. 

(3592) 


CHAP.   XIV.]  ADMISSIONS  ACTED  UPON  BY  OTHERS.  'i25 

by  taking  bis  person,  or  seizing  bis  goods,  if  before  tbe  process  be 
sued  out,  be  is  asked  bis  name,  and  gives  sucb  wrong  one;  '  and  if 
a  party,  vpbo  bas  entered  into  a  bond  by  a  wrong  name,  is  sued  in 
tbat  name,  be  cannot,  as  it  seems,  cause  tbe  statement  of  claim  to 
be  amended  at  tbe  cost  of  tbe  plaintiff,^  and  probably  be  would  be 
estopped  from  denying  tbat  tbe  name  in  wbicb  be  was  sued  was  bis 
real  uame.^  Again,  in  tbe  case  of  a  compulsory  reference  under 
tbe  Common  Law  Procedure  Act,  1854,  wben  tbe  award  was  not 
made  witbin  tbree  montbs,^  but  botb  parties  bad,  after  tbe  lapse  of 
tbat  period,  continued  to  attend  before  tbe  arbitrator  witbout  raising 
any  objection  to  bis  jurisdiction,  it  was  beld  tbat  tbe  losing  party 
was  estopped  from  alleging  tbat  tbe  time  bad  not  been  enlarged, 
eitber  by  tbe  court,  or  by  tbe  written  consent  of  tbe  parties.'  On 
tbe  same  principle,  wbere  a  judge  bad  tried  a  cause  witbout  tbe  in- 
tervention of  a  jury,  botb  parties  assenting  to  bis  jurisdiction,  and 
appearing  before  bim,  tbe  unsuccessful  party  was  not  allowed  after- 
wards to  object,  tbat  no  written  consent  bad  been  drawn  up  in 
accordance  witb  tbe  requirements  of  tbe  statute  tben  in  force.^ 

§  847.  If  tbe  members  of  an  incorporated  company  allo^v  a  soli- 
citor to  appear  for  tbem  as  defendants,  and  be  consents  to  a  refer- 
ence, tbey  cannot,  after  tbe  award  is  made,  object  to  tbe  submission, 

'  As  to  a  ca.  sa.,  see  Morgans  v.  Bridges,  1  B.  &  A.  6.50,  651,  and  Magnay 
V.  Fisher,  5  M.  &  Gr.  778,  787;  6  Scott  N.  R.  588,  S.  C.  These  cases  appear 
to  overrule  Coote  v.  Leighworth,  M.  557,  and  a  dictum  of  Ld.  Hale  in  Thur- 
bane  et  al.,  Hardr.  323;  but  see  Freeman  v.  Cooke,  18  L.  J.,  Ex.  115,  where 
Parke,  B.,  intimated  that  it  had  always  been  the  opinion  of  the  profession 
that  Coote  v.  Leighworth  was  law.  See,  also,  Dunston  v.  Paterson,  26  L.  J., 
C.   P.   267;  2  Com.  B.,  N.  S.  495,  S.  C;  Kelly  v.  Lawrence,  33  L.  J..  Ex.  197; 

3  H.  &  C.  1,  S.  C.  As  to  a  fi.  fa.,  see  Price  i\  Harwood,  3  Camp.  108,  per  Ld. 
Ellenborough;  cited  and  recognised  by  Cresswell,  J.,  in  Fisher  v.  Magnay,  5 
M.  &  Gr.  787.     See,  also.  Reeves  r.  Slater,  7  B.  &  C.  486. 

2  Hyckman  v.  Shotbolt,  3  Dyer,  279,  b.,  cited  5  M.  &  Gr.  788,  n.     See  3  & 

4  W.  4,  c.  42,  ^  11. 

"  R.  v.  Wooldale,  6  Q.  B.  566,  per  "Wightman,  J.,  citing  Maby  v.  Shepherd, 
Cro.  Jac.  640,  and  Hyckman  v.  Shotbolt,  3  Dyer  279,  b.  See,  also,  Williams 
V.  Bryant,  5  M.  &  W.  447. 

*  See  Baker  v.  Stephens,  8  B.  &  S.  438. 

»  Tyerman  v.  Smith,  25  L.  J.,  Q.  B.  359;  6  E.  &  B.  719,  S.  C;  17  &  18  V., 
c.  125,  |§  3  &  15.  See,  also,  Haines  v.  E.  India  Co.,  6  Moo.  Ind.  App.  Cas. 
467,  484,  485,  per  Sir  J.  Patteson;  11  Moo.  P.  C.  R.  39,  57,  S.  C. 

«  Andrews  v.  Elliott,  5  E.  &  B.  502;  S.  C,  6  E.  &  B.  338,  per  Ex.  Ch.; 
17  &  18  v.,  c.  125,  §  1. 

(3593) 


726  ADMISSIONS  actp:d  upon  by  others.  [part  ii. 

on  the  ground  that  the  solicitor  had  no  authority  under  seal  to 
defend  or  refer  the  cause.'  Where,  too,  the  order  of  a  judge  was 
bad  as  a  proceeding  under  an  Interpleader  Act,-  now  repealed,  for 
want  of  a  statement  of  consent  upon  its  face,  it  was  nevertheless 
held  to  be  conclusive  upon  the  parties,  who  by  their  conduct  had 
agreed  to  submit  the  matter  in  dispute  to  the  decision  of  the  judge.' 
So,  although  a  breach  of  covenant  can  in  no  case  be  justified  by  a 
parol  licence  to  break  it,*  a  forfeiture  occasioned  by  it  may  be  some- 
times waived  or  rendered  nugatory  by  the  conduct  of  the  covenantee. 
Thus,  where  a  lessor,  after  giving  notice  to  his  lessee  to  do  repairs 
within  the  period  prescribed  by  the  lease,  so  conducted  himself  as 
to  hall  the  lessee  asleep  and  to  lead  him  to  suppose  that  he  might 
refrain  from  doing  the  repairs,  the  court  would  not  allow  the  lessor 
to  insist  upon  a  covenant  of  forfeiture,  on  the  ground  that  the  re- 
pairs had  not  been  finished  within  the  time  fixed  for  them.^  So, 
where  a  covenant  to  insure  on  the  tenant's  part  was  qualified  by  an 
option  given  to  the  landlord  to  insure  if  the  tenant  made  default, 
and  to  add  the  premiums  to  his  rent;  it  was  held,  in  ejectment  for 
a  forfeiture  for  not  insuring,  that  the  defendant  might  defeat  the 
action,  by  proving  that  the  landlord  had  represented  to  him  that  he 
had  exercised  the  power,  and  had  himself  duly  insured  the  premises.® 
So,  also,  a  tenant,  who  had  paid  rent,  and  acted  as  such,  was  not  per- 
mitted,— as  stated  more  fully  in  another  place,' — to  set  up  a  superior 
title  of  a  third  person  against  his  lessor,  in  bar  of  an  ejectment 
brought  by  him;  for  since  he  derived  possession  from  him  as  tenant, 
he  was  not  allowed  to  repudiate  that  relation. 

§  848.  This  doctrine  is  also  applied  to  the  respective  relations    ?  776 
of  licensor  and  licensee,  bailor  and  bailee,  and  principal  and  agent; 
the  rule  of  law  being  clear  that  neither  licensees,  nor  bailees,  nor 


'  Faviell  v.  East.  Cos.  Ry.  Co.,  2  Ex.  R.  344;  6  Dowl.  &  L.  54,  S.  C. 

M  &  2  W.  4,  c.  58. 

'  Harrison  r.  Wright,  13  M.  &  W.  816. 

*  Doe  V.  Gladwin,  6  Q.  B.  953,  962;  West  v.  Blakeway,  2  M.  &  Gr.  729. 

6  Hughes  V.  Metrop.  Ry.  Co.,  45  L.  J.,  C.  P.  578,  per  Ct.  of  App. ;  S.  C, 
aff.  in  Dora.  Proc.  L.  R.,  2  App.  Cas.  439;  and  46  L.  J.,  C.  P.  583. 

*  Doe  V.  Sutton,  9  C.  &  P.  706;  explained  by  Patteson,  J.,  in  Doe  v.  Glad- 
win, 6  Q.  B.  962,  963;  Doe  v.  Rowe,  Ry.  &  M.  343;  2  C.  &  P.  246,  S.  C. 
See  ante.  U  804—808. 

^  Ante,  U  101—103. 

(3594) 


CHAP.  XIV.]  ADMISSIONS  ACTED  UPON  BY  OTHERS.  727 

agents,  caa  be  permitted  to  dispute  the  respective  titles  of  their 
licensors,  bailors,  or  principals.'  A  licensee,  therefore,  under  a 
patentee  is  estopped  from  dispating  the  validity  of  the  patent,  so 
long  as  the  licence  continues  in  force."  So,  if  a  warehouseman, 
wharfinger,  banker,  solicitor,  agent,  or  other  depositary  of  goods  or 
moneys,  has  once  acknowledged  the  title  of  a  person  as  his  bailor  or 
principal,  and  has  agreed  to  hold  the  goods  or  moneys  subject  to 
his  order,  or  to  sell  the  goods  and  to  account  for  the  proceeds,  he 
will  be  estopped  from  setting  up  the  title  of  a  third  person  to  the 
same  goods  or  moneys,  or  from  otherwise  defeating  the  rights  of  his 
bailor  or  principal,  against  his  own  manifest  obligations  to  him.' 
An  exception,  however,  will  be  allowed,  where  the  bailment  has 
been  determined  by  what  is  equivalent  to  an  eviction  by  title  para- 
mount,* and,  also,  where  the  bailor  or  principal  has  obtained  the 
goods  fraudulently  or  tortiously  from  the  third  person,^  provided 
the  defendant  in  such  last  case  can  show,  that  he  was  unacquainted 
with  the  circumstances  when  he  made  the  admission,'*  and  that  such 
third  person  has  actually  made  a  claim  to  the  goods  or  moneys  in 
question.^     Perhaps   the    bailor's  title  might    also   be    impugned, 

1  Dixon  V.  Hamond,  2  B.  &  A,  310,  313,  per  Abbott,  C.  J. ;  Collett  v.  Hub- 
bard, 2  Coop.  94,  99;  Zulueta  v.  Vinnent,  1  De  Gex,  M.  &  G.  315,  Story,  Agen. 
I  217;  Phillips  v.  Hall,  8  Wend.  610;  Drown  v.  Smith,  3  New  Hamp.  299; 
Eastman  v.  Tattle,  1  Cowen,  248;  M'Neil  v.  Philip.  1  M'C.  392;  Chapman  v. 
Searle,  3  Pick.  38,  44;  Jewett  v.  Tony,  11  Mass.  219;  Lyman  v.  Lyman,  id. 
317;  Story,  Bail.  I  102. 

^  Crossleyn  Dixon,  32  L.  J.,  Ch.  617,  per  Dom.  Proc.;  10  H.  of  L.  Cas. 
293,  S.  C;  Clark  v.  Adie,  L.  R.,  2  App.  Cas.  423;  46  L.  J.,  Ch.  598,  S.  C,  per 
Dom.  Proc. 

3  Gosling  V.  Birnie,  7  Bing.  339;  5  M.  &  P.  160,  S.  C;  Woodley  v. 
Coventry,  32  L.  J.,  Ex.  185;  2  H.  &  C.  164,  S.  C;  Stonard  v.  Dunkin,  2 
Camp.  344,  per  Ld.  Ellenborough;  Harman  v.  Anderson,  id.  243,  per  id.; 
Knights  V.  Wiflfen,  5  Law  Rep.,  Q.  B.  660;  Hawes  v.  Watson,  2  B.  &  C.  540; 
4  D.  &  R.  22,  S.  C;  Dixon  v.  Hamond,  2  B.  &  A.  310;  Roberts  v.  Ogilby,  9 
Price,  269;  anon,  per  Gould,  J.,  cited  3  Esp.  115,  and  there  recognised  by 
Ld.  Kenyon;  Farringdon  v.  Clerk,  3  Doug.  124;  2  Chit.  R.  429,  S.  C;  Holl 
V.  Griffin,  10  Bing.  246;  3  Moore,  732,  S.  C;  Nickolson  v.  Kuowles,  5  Madd. 
47;  Evans  v.  Nichol,  3  M.  &  Gr.  614.  See,  however,  Thorne  v.  Tilbury,  27  L. 
J.,  Ex.  407;  3  H.  &  N.  534,  S.  C. 

*  Biddle  v.  Bond,  34  L.  J.,  Q.  B.  137;  6  B.  &  S.  225,  S.  C. 

5  Hardman  v.  Wilcock,  9  Bing.  382,  n.;  Biddle  v.  Bond,  34  L.  J.,  Q.  B.  137; 
6  B.  &  S.  225,  S.  C. 

^  Per  Alderson,  J.,  in  Gosling  i\  Birnie,  7  Bing.  346;  Ex  p.  Davies,  re  Sad- 
ler, L.  R.,  19  Ch.  D.  86. 

'  Betteley  v.  Reid,  4  Q.  B.  511,  517,  518. 

(3595) 


728  ADMISSIONS  ACTED  UPON  BY  OTHERS.  [PART  II. 

should  the  circumstances  be  such  as  to  show  that  he,  in  connexion 
with  some  third  person,  had  practised  a  fraud  on  the  bailee,  by  re- 
presenting goods  to  belong  to  the  bailor,  which,  in  fact,  were  the 
property  of  such  third  person,  if  in  this  case  additional  proof  were 
given,  that  the  defendant,  in  consequence  of  the  fraudulent  misre- 
presentation, had  sustained  any  real  injury.^ 

§  849.  It  seems  also  that,  where  a  person  pledges  property  to  §  '^^6 
which  he  has  no  title,  the  pledgee  is  not  estopped  from  delivering  it 
to  the  rightful  owner;  for  in  the  ordinary  case  of  a  pledge,  the 
pledgor  impliedly  undertakes  that  the  property  is  his  own,  and  the 
pledgee  merely  undertakes  that  he  will  return  it  to  the  pledgor, 
provided  it  be  not  shown  to  belong  to  another.'  A  common  carrier, 
too,  being  bound  to  receive  goods  for  carriage,  and  having  no  means 
of  making  inquiry  as  to  their  ownership,  is  at  liberty  to  dispute  the 
title  of  the  person  from  whom  he  has  received  them;  and  if  he  be 
sued  in  trover  by  such  person,  he  may  establish  his  defence  by 
proving  that  he  has  delivered  the  goods  to  the  real  owner  on  his 
claiming  them.^  A  vendor,  however,  who  has  sold  goods  to  a  party 
as  a  sole  purchaser,  and  has  directed  his  factors  to  weigh  them  over 
to  such  party,  and  to  enter  them  in  his  name  in  their  books,  cannot, 
after  such  sale  and  transfer,  dispute  his  title  as  sole  proprietor, 
or  detain  the  goods,  on  the  authority  of  a  third  person,  who  claims 
to  be  a  joint  purchaser.* 

§  850.  Again,  in  an  action  against  the  acceptor  of  a  bill,  the  §  777 
defendant  cannot  show  that  his  signature  has  been  forged,  if  he  has 
accredited  the  bill,  and  induced  the  plaintiff  to  take  it,  by  saying 
that  the  acceptance  was  his,  and  that  the  bill  would  be  duly  paid.^ 
At  one  time,  however,  it  was  deemed  law,  that  no  consideration  of 
estoppel  as  between  the  parties  could  have  any  weight  where  the 
rights  of  the  revenue  intervened;  and,  consequently,  the  maker  of  a 


'  Scott  V.  Crawford,  4  M.  &  Gr.  1031. 

^  Cheesman  v.  Exall,  G  Ex.  R.  341. 

3  Sheridan  v.   The  New  Quay  Co.,  28  L.  J.,  C.  P.  58;  4  Com.  B.,  N.  S.  618, 
S.  C.  *  Kieran  i'.  Sandars,  6  A.  &  E.  515. 

^  Leach   v.    Buchanan,  4   Esp.    226   per   Ld.    Ellenborough;  recognised   by 
Erskine,  J.,  in  Sanderson  i;.  Collman,  4  M.  &  Gr.  222. 

(3596) 


CHAP.  XIV.]    ADMISS.  IMPLIED  IN  ACCEPTING  BILL  OF  EXCHANGE.     729 

banker's  cheque  provided  it  were  payable  to  bearer  on  demand,' 
might  have  defrauded  a  bona  fide  holder  for  value,  by  proving  that 
the  cheque  was  post  dated,  and,  as  such,  inadmissible  in  evidence 
without  a  bill  stamp.^  But  this  doctrine,  —  which  certainly- 
savoured  of  cruel  injustice, — has  been  repudiated  by  the  Court  of 
Exchequer;^  and  it  seems  now  to  be  the  law,  that  if  a  cheque, — - 
whether  payable  to  bearer  or  to  order, — appears,  when  tendered 
in  evidence,  to  bear  on  its  face  a  sufficient  stamp,  the  court  will 
receive  the  document,  and  will  not  allow  any  proof  to  be  given 
that  it  had  actually  been  post-dated,  and  that  the  holder  had  taken 
it  with  knowledge  of  that  fact.* 

§  851.  The  acceptance  of  a  bill  of  exchange  is  also  deemed  a  ?  778 
conclusive  admission,^  as  against  the  acceptor,  of  the  signature  of 
the  drawer,^  of  his  capacity  to  draw; '  and  if  the  bill  be  payable 
to  the  order  of  the  drawer,  of  his  capacity  to  indorse;^  and  if  it  be 
drawn  by  procuration,  of  the  authority  of  the  agent  to  draw  in  the 
name  of  the  principal;  ^  and  it  matters  not  in  this  respect,  whether 

1  Whistler  w.  Forster,  32  L.  J.,  C.  P.  161;  14  Com.  B.,  N.  S.  248,  S.  C. ; 
Austin  V.  Bunyard,  4  Fostand  Fin.  253,  per  Cockburu,  C.  J. ;  Bull  v.  O'Sullivan, 
G  Law  Kep.,  Q.  B.  209;  40  L.  J.,  Q.  B.  141,  S.  C. 

^  Field  V.  Woods,  7  A.  &  E.  114;  2  N.  &  P.  117,  S.  C;  recognised  in 
Steadman  v.  Duliamel,  1  Com.  B.  892,  893. 

^  Austin  V.  Bunyard,  34  L.  J.,  Q.  B.  217;  6  B  &  S.  687,  S.  C. 

*  Gattyr.  Fry,  L.  R.,  2  Ex.  I).  265;  46  L.  J.,  B.\.  605,  S.  C;  Emanuel 
V.  Robarts,  6  B.  &  S.  687;  34  L.  J.,  Q.  B.  217,  S.  C. 

s  See  45  &  46  V.,  c.  61,  ?  54. 

6  Sandersons.  Collman,  4  M.  &  Gr.  209;  4  Scott,  N.  R.  638,  S.  C;  Bass 
V.  Clive,  4  M.  &  Sel.  13. 

'  Id.     See  Haly  v.  Lane,  2  Atk.  182,  per  Ld.  Hardwicke. 

^  Taylor  v.  Croker,  4  Esp.  187,  per  Ld.  Ellenborough;  Pitt  v.  Chappelow, 
8M.-&W.  616;  Drayton  v.  Dale,  2  B.  &  C.  293;  3  D.  &  R.  534,  S.  C.  All 
these  cases  were  recognised  by  the  court  in  Sanderson  v.  Collman,  4  M.  &  Gr. 
218,  219,  224.  See,  also,  Bralthwaite  v.  Gardiner,  8  Q.  B.  473,  where,  in  au 
action  by  the  indorsee  against  the  acceptor  of  a  bill,  the  defendant  was  held 
to  be  estopped  from  pleading  that  the  drawer  and  first  indorser  was  an  un- 
certificated bankrupt  when  the  acceptance  was  given,  and  that  his  assignees 
had  demanded  payment.  So,  in  a  similar  action,  it  was  held,  that  the 
defendant  could  not  plead  under  the  old  law,  that  the  drawer  and  first  indonser 
was  a  married  woman  from  the  date  of  the  drawing  down  to  the  time  of  the 
indorsing  of  the  bill.  Smith  v.  Marsack,  6  Com.  B.  486;  6  Dowl.  &  L.  363, 
S.  C.     See  ante,  ?  842. 

»  Robins  )n  v.  Yarrow,  7  Taunt.  455;  Jones  v.  Turnour,  4  C.  &  P.  204,  per 
Ld.  Tenterden. 

(3597) 


730  AVIIAT  ACCEPTOR  OF  BILL  OF  EXCHANGE  ADMITS.         [PAKT  II. 

the  bill  be  drawn  before  or  after  the  acceptance.'  The  law,  however, 
in  geneial,  recognises  no  such  admission  on  the  part  of  the  acceptor, 
either  of  the  signature  of  the  payee,  though  he  be  the  same  party 
as  the  di-awer,-'  or  of  that  of  any  other  indorser;''  and  this,  too, 
although,  at  the  time  of  the  acceptance,  the  indorsements  were  on 
the  bill.*  Neither  does  the  acceptance  admit,  that  an  agent,  who 
has  drawn  a  bill  by  procuration,  payable  to  the  order  of  the  principal, 
has  authority  to  indorse  the  same;^  nor  is  the  acceptor  of  a  bill, 
which  a  partner  has  drawn  in  the  partnership  name  and  made 
payable  to  the  firm's  order,  estopped  from  showing  that  in  fact  it 
was  not  indorsed  by  the  firm  or  negotiated  for  any  partnership 
purpose.'^  So,  if  on  a  bill  payable  to  the  order  of  the  drawer  the 
name  of  a  real  person  as  drawer  and  indorser  be  forged,  it  seems  that 
the  mere  acceptance  of  such  bill,  in  ignorance  of  the  forgery,  will  not 
preclude  the  acceptor  from  denying  the  genuineness  of  the  indorse- 
ment, though  it  be  in  the  same  handwriting  as  the  di'awing  which 
he  is  bound  to  admit;'  but  if  the  acceptor,  with  knowledge  of  the 
forgery,  puts  the  bill  in  circulation,  he  will  be  estopped  from  dis- 
puting the  validity  of  the  indorsement  equally  with,  that  of  the 
drawing  *  In  this  last  event  the  case  is  considered  to  fall  within 
the  principle  of  Cooper  v.  Meyer,  which  decides  that  if  the  bill  be 
drawn  in  a  whoWy  fictitious  name,  and  the  handwriting  of  the  in- 
dorsement be  the  same  as  that  of  the  drawing,  the  acceptor  will  be 
estopped  from  denying  it,  because  he  admits  that  the  bill  is  drawn 
by  somebody,  that  is,  by  the  person  who  indorses  in  the  same  hand- 
writing, and  the  fair  construction  to  be  put  on  his  undertaking  is, 
that  he  will  pay  to  the  signature  of  the  same  person  who  signed  for 
the  drawer.® 


1  Schultz  V.  Astley,  2  Bing.  N.  C.  544,  552,  553  ;  2  Scott,  815,  S.  C. ; 
Hallifax  v.  Lyle,  3  Ex.  R.  446;  Lond.  &  S.  West.  Bk.  v.  Wentworth,  L.  R., 
5  Ex.  D.  96.  But  see  Baxendale  v.  Bennett,  L.  R.,  3  Q.  B.  D.  525,  per  Ct.  of 
App.;  47  L.  J.,  Q.  B.  625,  S.  C. 

2  Forster  v.  Clements,  2  Camp.  17;  Macferson  v.  Thoytes,  Pea.  R.  20; 
Bosanquet  v.  Anderson,  6  Esp.  44,  per  Ld.  Ellenborough;  Cooper  r.  Meyer, 
10  B.  &  C.  471,  per  Ld.  Tenterden.  ^  Id. 

*  Smith  V.  Chester,  1  T.  R.  654;  Roharts  v.  Tucker,  16  Q.  B.  560. 

*  Robinson  v.  Yarrow,  7  Taunt.  455;  recognised  in  Beeman  v.  Duck,  11 
M.  &  W.  255. 

«  Garland  v.  Jacmib,  8  Law  Rep.,  Ex.  216,  per  Ex.  Ch. 
T  Beeman  r.  Duck,  11  ]\I.  &,  W.  251,  255.  ^  Id. 

9  Cooper  V.  Meyer,  10  B.  &  C.  468,  471,  per  Ld.  Tenterden;    5  M.  &  R.   387, 

(3598) 


CHAP.  XIV.]         WHAT  INDORSEMENT  OF  BILL  OR  NOTE  ADMITS.  731 

§  852.  The  reasons  for  this  distinction  between  the  case  of  a  §  779 
drawer  and  that  of  an  indorser,  who  signs  the  bill  before  the  accept- 
ance, are  not  very  clear;  but  those  usually  assigned  are,  that,  as 
the  acceptor  is  only  presumed  to  be  acquainted  with  the  handwriting 
of  the  drawer,  it  is  sufficient  if  he  ascertains  that  his  signature  is 
genuine;  that  he  is  not  bound  to  look  at  the  back  of  the  bill  at  all; 
that,  even  if  he  were,  he  could  not  be  supposed  to  know  the  hand- 
writing of  indorsers,  who  would  probably  be  strangers  to  him ;  and 
that  a  different  rule  would  raise  nice  questions  of  fact  in  every 
case,  as  to  whether  the  bill  was  indorsed  before  or  after  acceptance, 
and  would  consequently  embarrass  the  circulation  of  negotiable 
securities,  by  rendering  the  position  of  acceptors  hazardous  and 
undefined.' 


§  853.  In  accordance  with  the  law  which  estops  an  acceptor  from  ^  780 
disputing  the  genuineness  of  the  drawing,  the  indorsement  by  the 
payee  of  a  promissory  note  is  a  conclusive  admission  of  the  hand- 
writing of  the  maker ;^  and  the  indorsement  of  a  bill  of  exchange 
will  also  operate  as  an  estoppel  on  the  indorser  to  deny  any  of  the 
preceding  signatures.^ 

§  854.  Having  now  fully  discussed  the  effect  of  such  admissions  ^  731 
as  have  been  acted  upon,  it  is  right  to  point  out  that  those 
admissions,  which  either  have  been  made  without  any  intention 
of  being  acted  upon,  or  which  have  not  been  acted  upon,  or  by 
which  the  situation  of  the  opposite  party  has  not  been  prejudiced 
or  altered,  though  receivable  in  evidence  against  the  parties  making 
them,   are    not  conclusive.*     Thus,   if  A.  contracts  to   sell  timber 


S.  C. ;  explained  and  recognised  by  Parke,  B.,  in  Beeman  v.  Duck,  11  ]\I.  &W. 
253—256.  See,  also  Ashpitel  v.  Bryan, -32  L.  J.,  Q.  B.  91;  3  B.  &  S.  474,  S. 
C;  S.  C.  in  Ex.  Cli.,  5  B.  &  S.  723,  and  33  L.  J.,  Q.  B.  328;  Phillips  v.  Ira 
Thurn,  18  Com.  B.,  N.  S.  400  &  694;  35  L.  J.,  C.  P.  220;  and  1  Law  Eep.,  C. 
P.  463,  S.  C;  1  H.  &  R.  499,  S.  C,  in  a  later  stage. 

'  See  Story,  Bills,  §  263;  Robinson  v.  Yarrow,  7  Taunt.  458,  per  Park,  J.; 
Smith  V.  Chester,  1  T.  R.  654;  Canal  Bk.  v.  Bk.  of  Albany,  1  Hill,  N.  Y.  K. 
287.         .  2  Free  v.  Hawkins,  Holt,  N.  P.  R.  550,  per  Gibbs,  C.  J. 

3  45  &  46  v.,  C.61,  I  55. 

*  See  Howard  v.  Hudson,  2  E.  &  B.-l;  White  v.    Greenish,  11  Com.   B., 

(3599) 


732  ADMISSIONS  NOT  ACTED  UPON  BY  OTHERS.  [PAUT  11. 

to  B.,  and  gives  him  a  delivery  order,  he  may  still,  on  B.'s  bank- 
ruptcy, meet  an  action  of  trover  brought  by  B.'s  trustee,  by  showing 
that  the  delivery  order  was  invalid,  and  therefore  did  not  amount 
to  a  constructive  delivery  of  the  goods,  provided  B.  has  neither 
paid  for  them,  nor  sold  them  to  a  third  party.'  So,  in  an  action 
against  a  marshal,  for  the  escape  of  a  prisoner  arrested  at  the 
suit  of  the  plaintiff,  the  defendant,  by  having  received  the  prisoner 
into  custody,  is  not  estopped  from  disputing  the  legality  of  the 
custody.^  Neither  will  the  court  treat  as  conclusive  evidence  the 
admission  that  his  trade  was  a  nuisance,  by  one  indicted  for  setting 
it  up  in  another  place ;^  or  the  admission  by  the  defendant,  in  a 
petition  for  damages  by  reason  of  adultery,*  that  the  "  teterrima 
causa  "  was  the  wife  of  the  plaintiff.'^  So  a  sheriff's  return,  though 
it  be  conclusive  evidence,  in  the  particular  cause  in  which  it  is  made, 
or  for  the  purposes  of  an  attachment,  does  not  operate  as  an 
estoppel  in  any  other  action  or  proceeding,  either  as  against  the 
sheriff  or  as  against  his  bailiff.^  So,  also,  a  creditor  is  not  estopped 
from  bringing  an  action  against  a  sheriff  for  a  false  return,  by 
accepting  the  amount  levied  on  account  and  towards  the  satisfaction 
of  the  debt  mentioned  in  the  writ;'  and  where  a  person  brought  an 
action  of  trover  for  a  dog,  he  was  held  not  to  be  precluded  from 
proving  his  title  to  it,  though  he  had  previously  authorised  a  third 
party,  against  whom  the  defendant  had  brought  a  similiar  action,  to 
deliver  it  to  the  defendant,  in  the  place  of  paying  50Z ,  which  was 
the  alternative  directed  by  the  verdict;  the  third  person  having,  at 
the  time  of  delivery,   demanded   back  the  dog,  on   behalf  of  the 

N.  S.  20!);  Foster?;.  Mentor  Life  Assur.  Co.,  3  E.  &  B.  48;  Carr  v.  Lond.  &  N. 
West.  Ry.  Co.,  44  L.  J.,  C.  P.  109;  10  Law  Rep.,  C.  P.  307,  S.  C. ;  Coventry  v. 
Gt.  East.  Ry.,  L.  R.,  11  Q.  B.  D.  776. 

1  Lackington  r.  Atheiton,  7  M.  &  Gr.  360,  363—365. 

2  Contant  r.  Chapman,  2  Q.  B.  771. 

*  R.  V.  Neville,  Pea.  R.  91,  per  Ld.  Kenyon. 

*  See  20  &  21  V.,  c.  85,  ?  33. 

*  Morris  r.  Miller,  4  Burr.  2057;  further  explained  in  Rigg  v.  Curgenven,  2 
Wils.  399. 

«  Standish  v.  Ross,  3  Ex.  R.  527;  Brydges  v.  Walford,  6  M.  &  Sel.  42;  1 
Stark.  R.  389,  n.  S.  C;  Jackson  v.  Hill,  10  A.  &  E.  477;  Remmett  v.  Lawrence, 
15  Q.  B.  1004;  Levy  v.  Hale,  29  L.  J.,  C.  P.  127;  Stimson  r.  Farnham,  41  L. 
J.,  Q.  B.  52;  7  Law  Rep.,  Q.  B.  175.  S.  C. 

'  Holmes  v.  Clifton,  10  A.  &  E.  673,  overruling  Beynon  v.  Garrat,  1  C.  &  P. 
154. 

(3600) 


CHAP.  XIV.]         ADMISSIONS  NOT  ACTED  UPON  BY  OTHERS.  733 

plaintiff,  as  bis  property.'  In  these,'  and  the  like  cases,'  no  wrong 
is  done  to  the  other  party,  by  receiving  any  legal  evidence  to  show 
that  the  admission  was  erroneous,  and  by  leaving  the  whole 
evidence,  including  the  admission,  to  be  weighed  by  the  jury. 


§  855.  The  case  of  Freeman  v.  Cooke*  carries  this  doctrine  to  ^  792 
its  extreme  limit,  if  it  does  not  transgress  the  strict  bounds  of  law. 
That  was  an  action  of  trover  brought  against  a  sheriff  for  seizing 
the  plaintiff's  goods  under  a  fi.  fa.  against  his  brother,  to  which  the 
defendant  pleaded  not  guilty,  not  possessed,  and  leave  and  licence. 
It  appeared  at  the  trial,  that  the  plaintiff,  fearing  an  execution,  had 
removed  his  goods  to  his  brother's  house,  and  when  the  sheriff's 
officer  came  there,  the  plaintiff,  supposing  that  he  had  a  writ 
against  himself,  warned  him  not  to  seize  the  goods,  as  they  be- 
longed to  his  brother.  The  officer,  however,  producing  his  writ, 
which  was  against  the  brother,  the  plaintiff,  before  the  goods  were 
actually  seized,  told  him  that  they  were  the  property  of  a  third 
party;  but  the  officer  disregarded  this  last  statement,  and  seized 
and  sold  the  goods,  as  belonging  to  the  brother.  On  this  state  of 
facts,  the  jury  found  that  the  goods  were  the  plaintiff's,  but  that, 
before  the  seizure,  he  falsely  stated  to  the  officer  that  they  belonged 
to  his  brother,  and  that  the  officer  was  thereby  induced  to  seize 
them  as  his  brother's.  The  court,  on  this  finding,  directed  the 
verdict  to  be  entered  for  the  plaintiff,  on  the  grounds,  first,  that 
the  plaintiff  did  not  intend  to  induce  the  officer  to  sieze  the  goods 
as  those  of  the  brother;  and  next,  that  no  reasonable  man  would 
have  seized  the  goods  on  the  faith  of  the  plaintiff's  representations 
taken  altogether. 


§  856.^  In   some   few  cases,  connected  with  the  administration  of    g  733 
public  justice  and  of  government,  admissions  have  been  held  con- 


'  Sandys  v.  Hodgson,  10  A.  &  E.  472. 

*  Gr.  Ev.  §  209,  four  lines. 

^  See   ante,  ??^    804—808.     See,  also,  Machu   v.  Lend.   &  S.  West.   Ry.  Co., 
2  Ex.  R.  41.5;  Greenish  v.  White,  31  L.  J.,  C.  P.  93. 

*  2  Ex.  R.  654,  664;  6  Dowl.  &  L.  187,  S.  C. 

*  Gr.  Ev.  g  210,  iu  part. 

(3601; 


734        ADMISS.  CONCLUSIVE  ON  GROUNDS  OF  PUBLIC  POLICY.       [PAKT  II. 

elusive  on  grounds  of  public  policy.  Thus,  in  an  action  for 
penalties  for  election  bribery,  a  man  who  had  given  money  to 
another  for  his  vote,  was  not  permitted  to  say  that  such  other 
person  had  no  right  to  vote.'  So,  where  the  owners  of  a  stage 
coach  took  up  more  passengers  than  were  allowed  by  statute,  and 
an  injury  was  laid  as  having  arisen  from  overloading,  their  conduct 
was  held  to  be  conclusive  evidence  that  the  accident  was  occasioned 
by  the  cause  assigned."  So,  one  who  has  officiously  intermeddled 
with  the  goods  of  another  recently  deceased,  is,  in  favour  of  creditors, 
estopped  from  denying  that  he  is  executor.^  And  if  an  executrix 
treats  the  goods  of  her  testator  as  the  property  of  her  husband, 
she  will  not  be  allowed  to  object  to  their  being  taken  in  execution 
for  her  husband's  debt*  Thus,  also,  where  a  shipowner,  whose 
ship  had  been  forfeited  for  breach  of  the  revenue  laws,  applied  to 
the  Secretary  of  the  Treasury  for  a  remission  of  the  forfeiture, 
on  the  ground  that  it  was  incurred  by  the  master  ignorantly  and 
without  fraud,  and  upon  making  oath  to  the  application,  in  the 
usual  course,  the  ship  was  given  up;  he  was  not  permitted  after- 
wards to  gainsay  this  statement,  and  to  prove  the  misconduct  of 
the  master,  in  an  action  by  the  latter  against  himself  for  wages  on 
the  same  voyage,  even  by  showing  that  the  fraud  hadsiibsequently 
come  to  his  knowledge.^ 

§  857.®  The  mere  fact,  that  an  admission  was  made  under  oath,    I  "784 

1  Combe  v.  Pitt,  3  Burr.  1586,  1590;  1  Wm.  Bl.  524,  S.  C;  Rigg  r.  Cur- 
genven,  2  Wils.  395. 

^  Israel  v.  Clark,  4  Esp.  259,  per  Ld.  Kenyon,  recognised  by  Ld.  Ellen- 
borough. 

3  Reade's  case,  5  Co.  33,  34;  Toller  on  Ex.  37—41;  1  Will,  on  Ex.  225, 
et  seq. 

*  Quick  V.  Staines,  1  B.  &  P.  293.     See  Fenwick  i-.  Eaycock,  2  Q.  B.  lOS. 

°  Freeman  v.  Walker,  7  Greenl.  6S.  But  a  sworn  entry  at  the  custom-hou.se 
of  certain  premises,  as  being  rented  by  A.,  B.,  and  C,  as  partners,  for  the  .sale 
of  beer,  though  conclusive  in  favour  of  the  Crown,  is  nut  conclusive  evidence 
of  the  partnership,  in  a  civil  suit,  in  fav'our  of  a  stranger.  Ellis  v.  Watson, 
2  Stark.  R.  453,  478.  The  difference  between  this  case  and  that  in  the  text 
may  be,  that,  in  the  latter,  the  partner  gained  an  advantage  to  himself,  which 
was  not  the  case  in  the  entry  of  partnership;  it  being  only  incidental  to  the 
principal  object,  namely,  the  designation  of  the  place  where  an  excisable 
commodity  was  sold. 

«  Gr.  Ev.  I  210,  in  part. 

(3602) 


CHAP.  XIV.]      SWORX  ADMISSIONS — ADMISSIONS  IN  DEEDS.  735 

does  not  seem  alone  to  render  it  conclusive  against  the  party;  but 
it  adds  vastly  to  the  weight  of  the  testimony,  throwing  upon  him 
the  burthen  of  showing  that  it  was  a  case  of  clear  and  innocent 
mistake.  Thus,  in  a  prosecution  under  the  game  laws,  proof  of 
the  defendant's  oath,  taken  under  an  Income  Act  then  in  force,  that 
the  yearly  value  of  his  estate  was  less  than  100/.,  was  held  not 
quite  conclusive  against  him,  though  very  strong  evidence  of  the 
fact;'  and  the  same  rule  has  been  applied  where  the  fact  sworn 
to  was  not,  as  it  might  be  considered  in  this  case,  a  matter  of 
judgment,  but  was  purely  a  matter  of  fact  within  the  knowledge  of 
the  party  swearing.^  The  defendant's  belief  of  a  fact,  sworn  to  in 
an  old  answer  in  Chancery,  is  admissible  evidence  against  him, 
though  not  conclusive.^ 


§  858.*  Admissions  in  deeds  have  already  been  considered  in  ?  "785 
regard  to  parties  and  privies,^  between  whom  they  are  generally 
regarded  as  estoppels,  if  properly  pleaded;®  and  when  not  techni- 
cally so,  they  are  entitled  to  great  weight,  from  the  solemnity  of 
their  nature.'  But  when  offered  in  evidence  by  a  stranger,  the 
adverse  party  may  repel  their  effect,  in  the  same  manner  as  though 
they  were  only  parol  admissions.* 

§  8591  Other  admissions,  though  in   writing,  not  having  been    §  786 
acted  upon  by  another  to   his    prejudice,   nor  falling  within  the  ' 


'  K.  V.  Clarke,  8  T.  R.  220. 

"  Thornes  v.  White,  Tyr.  &  Gr.  110. 

'  Doe  V.  Steel,  3  Camp.  115,  per  Ld.  Ellenborough.  Answers  in  Chancery- 
used  to  be  always  admissible  at  common  law  against  the  party ;  but 
apparently  were  not  regarded  as  strictlj-  conclusive,  merely  because  they  were 
sworn  to.  See  B.  N.  P.  236,  237;  Cameron  r.  Lightfoot,  2  W.  Bl.  1190; 
Grant  v.  .Jackson,  Pea.  E.  203;  Staddy  v.  Sanders,  2  D.  &  R.  347;  De  Whelp- 
dale  V.  Milburn,  5  Price,  485.  *  Gr.  Ev.  |  211,  in  great  part. 

^  Ante,  U  91—100. 

®  Fishmongers'  Co.  v.  Robertson,  5  M.  &  Gr.  193;  Bowman  v.  Rostron,  2 
A.  &  E.  295,  n. 

'  Doe  V.  Stone,  3  Com.  B.  176. 

^  R.  V.  Neville,  Pea.  R.  91.  Woodward  v.  Larking,  3  Esp.  286;  May.  of 
Carlisle  r.  Blamire,  8  East,  487.  492,  493. 

®  Gr.  Ev.  §  212,  in  great  part. 

(3603) 


733  ADMISSIONS  IN  KECEH'TS,  PASS-BOOKS,  ETC.  [PART  II. 

reason  before  mentioned  for  estopping  the  party  to  gainsay  them, 
are  not  conclusive  against  him,  but  are  left  at  large,  to  be  weighed 
with  other  evidence  by  the  jury.  Of  this  sort  are  receipts,  or 
mere  acknowledgments,  given  for  goods  or  money,  whether  on 
separate  papers,'  or  indorsed  on  deeds,"  or  on  negotiable  securities;' 
bankers'  pass-6ooA;s;  ^  the  adjustment  of  a  loss  on  a  policy  of 
insurance,  made  without  full  knowledge  of  all  the  circumstances, 
or  under  a  mistake  of  law  or  fact,  or  under  any  other  invalidating 
circumstances;  ^  and  acco»»^s  rendered,  such  as  a  solicitor's  bill,® 
and  the  like.'  An  old  bill  in  Chancery  is  not  admissible  at  all 
against  the  plaintiff  in  proof  of  the  admissions  it  contains,  since 
the  facts  stated  therein  are  regarded  as  nothing  more  than  the  mere 
sugrerestions  of  counsel.* 


§  860.   Where  an  executor  or  administrator,  upon  the  citation    §  787 
of  a  party  interested,  has  exhibited  an  inventory  of  the  personal 
estate   of   a   deceased  person,  either   in   the   Ecclesiastical  Court 
under  the  old  law,  or  in  the   Probate  Division  of  the  High  Court 
under  the  new  law,'  such  document,  being  sworn  to  by  the  exhi- 

'  Skaife  v.  Jackson,  3  B.  &  C.  421;  Farrar  v.  Hutchinson,  9  A.  «fe  E.  641  ; 
1  P.  &  D.  437,  S.  C;  Wallace  v.  Kelsall,  7  M.  &  W.  273,  per  Parke,  B.  ; 
Bowes  r.  Foster,  2  H.  &  N.  779,  787,  per  Martin,  B. ;  Lee  v.  Lane.  &  Yorks. 
Ry.  Co.,  6  Law  Rep.,  Ch.  Ap.  527.  These  cases  have  virtually  overruled 
Alner  v.  George,  1  Camp.  392.  For  American  cases  see  Harden  v.  Gordon,  2 
Mason,  541,  561;  Fuller  v.  Crittenden,  9  Conn.  401;  Ensign  v.  Webster,  1 
Johns,  145;  Putnam  v.  Lewis,  8  Johns.  389;  Stackpole  v..  Arnold,  11  Mass. 
27;  Tucker  v.  ]\Iaxwell,  id.  143;  Williamson  v.  Scott,  17  Mass.  249. 

2  Straton  v.  Kastall,  2  T.  R.  366;  Lampon  v.  Corke,  5  B.  &  A.  611,  per 
Holroj'd,  J.;  612.  per  Best,  J.  As  to  cases  where  the  receipt  of  money  is 
mentioned  in  the  deed  itself,  see  ante,  |  96. 

=*  Graves  v.  Key,  3  B.  &  Ad.  313. 

*  Commercial  Bk.  of  Scotl.  v.  Rhind,3  Macq.  Sc.  Cas.  H.  of  L.  643. 

^  Luckie  v.  Bushby,  13  Com.  B.  864;  Reyner  v.  Hall,  4  Taunt.  725;  Shep- 
herd V.  Chewter,  1  Camp.  274,  276,  n. ;  Adams  v.  Sanders,  M.  &  M.  373  ; 
4  C.  &  P.  25,  S.  C. ;  Christian  v.  Coombe,  2  Esp.  489. 

«  Loveridge  v.  Botham,  1  B.  &  P.  49. 

'  See  Bacon  v.  Chesney,  1  Stark.  R.  192,  193,  n.  h  ;  Dawson  v.  Remnant, 
6  Esp.  24, 

8  Boileau  v.  Rutlin,  2  E.x.  R.  665;  Doe  v.  Sybourn,  7  T.  R.  3,  per  Ld. 
Ken  yon. 

'  20  &  21  v.,  c.  77;  Rules  of  1862  for  Ct.  of  Prob.  in  contentious  business, 
r.  76,  and  Form  No.  27. 

(3604) 


CHAP.  XIV.]    INVEKTORY,  HOW  FAR  AN  ADMISSION  OF  ASSETS.  737 

bitant,  will  be  regarded  very  properly  as  prima  facie  evidence  of 
assets  ;  and  the  executor  or  administrator,  who  has  pleaded  plene 
administravit,  will  be  forced  to  show,  either  the  nonexistence  of 
such  assets,  or  that  they  have  not  reached  his  hands,  or  that  they 
have  been  duly  administered.'  The  same  effect  will  be  given  to  a 
declaration  of  the  personalty  of  a  testator  or  intestate,  which  has 
been  made  upon  oath  by  his  representative  before  a  tinal  settle- 
ment of  the  accounts."  So,  where,  since  the  1st  of  June,  1881, 
an  affidavit  has  been  received  by  the  Commissioners  of  Inland 
Revenue  from  any  person  applying  for  probate  or  letters  of  admin- 
istration, verifying  the  account  of  the  deceased's  estate  or  effects, 
such  affidavit  and  account  will,  of  course,  be  received,  whether  iu 
England  or  in  Ireland,  as  at  least  prima  facie  evidence  that  the 
deceased  left  assets  to  the  amount  specified  in  the  account,^  if  not 
as  sufficient  proof  that  such  assets  have  been  realised  in  due 
course.*  In  England,  however,  under  the  old  law,  as  inventories 
without  signature  or  verification  used  to  be  produced  for  the  mere 
purpose  of  obtaining  probate,  they  were  not  regarded  as  prima 
facie  evidence  of  assets,'^  though  they  would  seem  to  have  fur- 
nished, in  conjunction  with  other  circumstances,  some  proof  of  the 
value  of  the  estate.  An  old  probate  stamp,**  though  admissible  as 
slight  evidence  of  assets  to  the  amount  covered  thereby,  was  not 
alone  sufficient  to  throw  upon  the  executors  the  burthen  of  proving 
the  non-receipt  of  such    assets.'     Coupled,   however,  with    proof, 


'  Giles  V.  Dyson,  1  Stark.  R.  32,  explained  in  Steam  v.  Mills,  4  B.  &  Ad. 
660,  662  ;  Parsons  v.  Hancock,  M.  &  M.  330,  per  Parke,  J. ;  Hickey  v.  Hayter, 
1  Esp.  313  ;  6  T.  R.  384,  S.  C. ;  Young  v.  Cawdrey,  8  Taunt.  734.  See 
Hutton  V.  Rossiter,  7  De  Gex,  M.  &  G.  9. 

-  See  Rules  of  1862  for  Reg.  of  Ct.  of  Prob.  in  non-contentious  business, 
Form  No.  18;  and  Rules  for  Dist.  Reg.  of  Ct.  of  Prob.,  Form  No.  18  ;  and 
cases  cited  in  last  note. 

^  44  v.,  c.  12,  ?§  27 — 29.  This  law  has  prevailed  in  Ireland  for  some 
years  past.     See  Rowan  v.  Jebb,  10  Ir.  Law  R.  216. 

*  44  v.,  c.  12,  §  31.  To  understand  the  new  law  respecting  probate  and 
legacy  duty,  and  duties  on  accounts,  see,  and  study,  44  V.,  c.  12,  ^^  26 — 43. 

^  Steam  v.  Mills,  4  B.  &  Ad.  6.57  ;  1  N.  &  M.  434,  S.  C. 

*  An  affidavit  stamp  is  now  substituted  for  the  probate  stamp,  see  44  V., 
c.  12,  ^27. 

'  Mann  v.  Lang,  3  A.  &  E.  699  ;  Steam  v.  Mills,  4  B.  &  Ad.  663,  664. 
These  cases  overrule  Foster  v.  Blakelock,  5  B.  &  C.  326. 

(3605) 


738  ORAL  ADMISSIONS  TO  BE  RECEIVED  WITH  CAUTION.      [pART  II, 

either  of  long  acquiescence  in  the  payment  of  the  duty,  or  of  other 
suspicious  circumstances,  it  furnished  a  presumption  of  assets 
received,  which  executors  found  it  difficult  to  rebut.' 


§  861. '■'  Evidence  of  oi-al  admissions  ought  always  to  be  received  ^ 
with  great  caution.^  Such  evidence  is  necessarily  subject  to  much 
imperfection  and  mistake  ;  for  either  the  party  himself  may  have 
been  misinformed,  or  he  may  not  have  clearly  expressed  his 
meaning,*  or  the  witness  may  have  misunderstood  him,*  or  may 
purposely  misquote  the  expressions  used.®  It  also  sometimes 
happens,  that  the  witness,  by  unintentionally  altering  a  few  words, 
will  give  an  effect  to  the  statement  completely  at  variance  with 
what  the  party  actually  said.'  But  where  the  admission  is  delibe- 
rately made,  and  precisely  identified,  the  evidence  it  afPords  is  often 
of  the  most  satisfactory  nature.^ 


^  Mann  r.  Lang,  3  A.  &  E.  702,  per  Ld.  Denman  ;  Curtis  v.  Hunt,  1  C.  & 
P.  180,  per  Ld.  Tenterden  ;  Eowan  r.  Jebb,  10  Ir.  Law  K.  217  ;  Lazenby  v. 
Rawson,  4  De  Gex,  M.  &  G.  556,  563,  564,  per  Ld.  Cranworth. 

2  Gr.  Ev.  §  200,  iu  part. 

=»  See  post,  ?  862. 

*  See  Gospel  of  St.  John,  ch.  21,  vv.  21—23. 

*  See  St.  MattheAv,  ch.  27,  vv.  46,  47. 

6  See  and  compare  St.  John,  ch.  2,  vv.  18—21,  and  St.  Matthew,  ch.  26,  vv. 
60,  61. 

'  Ante,  ?  216,  n.'.  Alciatus  expresses  the  sense  of  the  civilians  to  the  same 
effect,  where,  after  speaking  of  the  weight  of  a  judicial  admission,  "propter 
majorem  certitudinem,  quam  in  se  habet,"  he  adds, — "  Quae  ratio  non  habet 
locum  quando  ista  confessio  probaretur  per  testes  ;  imo  est  minus  certa  cxteris 
prolationibus,''  &c.  Alciat.  de  Prses.,  Pars  2,  Col.  682,  n.  6.  See  Poth.  Obi., 
App.  No.  16,  §  13  ;  Lench  v.  Lench,  10  Ves.  517,  518. 
"^  Rigg.  V.  Curgenven,  2  Wils.  395,  399  ;  Glassf.  Ev.  356  ;  Com.  v.  Knapp, 
9  Pick.  507,  508,  per  Putnam,  J.  As  to  Admissions  by  Agents,  see  ante, 
U  602—605. 


r88 


(3606) 


CHAP.  XV,]     ORAL  CONFESSIONS  TO  BE  RECEIVED  WITH  CAUTION.       739 


CHAPTER  XV. 

CONFESSIONS. 

§  862.*  The  only  topic  under  the  general  head  of  admissions  g  7^9 
which  remains  to  be  discussed,  is  that  of  confessions  of  guilt  in 
criminal  prosecutions  ;  and  here  it  may  be  observed, — as  just 
remarked  in  regard  to  admissions  in  civil  proceedings," — that  the 
evidence  of  oral  confessions  of  guilt  ought  to  be  received  tcith 
great  caution.^  For  not  only  does  considerable  danger  of  mistake 
arise  from  the  misapprehension  or  malice  of  witnesses,  the  misuse 
of  words,  the  failure  of  the  party  to  express  his  own  meaning,  and 
the  infirmity  of  memory;*  but  the  zeal  which  generally  prevails 
to  detect  offenders,  especially  in  cases  of  aggravated  guilt,  and 
the  strong  disposition  which  is  often  displayed  by  persons  engaged 
in  pursuit  of  evidence,  to  magnify  slight  grounds  of  suspicion  into 
sufficient  proof,'^ — together  with  the    character  of    the  witnesses, 


'  Gr.  Ev.  g  214,  in  great  part.  2  ^^^^^  ^  gQj_ 

■'  Macaulay,  in  his  History  of  England,  Vol.  1,  Ch.  5,  p.  583,  has  ex- 
pressed this  sentiment  in  forcible  language.  "  Words,"  says  he,  "may  easily 
be  misunderstood  by  an  honest  man.  They  may  easily  be  misconstrued  by  a 
knave.  What  was  spoken  metaphorically  may  be  apprehended  literally.  What 
was  spnken  ludicrously  may  be  apprehended  seriously.  A  particle,  a  tense,  a 
mood,  an  emphasis,  may  make  the  whole  difference  between  guilt  and  inno- 
cence." 

*  See  Earle  r.  Picken,  5  C.  &  P.  542,  n.,  per  Parke,  B.;  P.  r.  Simons,  6 
C.  &  P.  540,  per  Alderson,  B. ;  Fost.  C.  L.  243;  Coleman's  case,  cited  in  Joy 
on  Confess.  108.  In  Resp.  v.  Fields,  Peck,  R.  140,  the  court  observed,  "How 
easy  is  it  for  the  hearer  to  take  one  word  for  another,  or  to  take  a  word  in  a 
sense  not  intended  by  the  speaker;  and  for  want  of  an  exact  representation  of 
the  tone  of  voice,  emphasis,  countenance,  eye,  manner,  and  action  of  the  one 
who  made  the  confession,  how  almost  impossible  is  it  to  make  third  persons 
understand  the  exact  state  of  his  mind  and  meaning  !  For  these  reasons  such 
evidence  is  received  with  great  distrust,  and  under  appehensions  for  the 
wrong  it  may  do." 

^  For  a  curious  instance  of   this    kind  of  exaggeration,  see    the    evidence 
adduced  in  support  of  Hugh    Macauley  Boyd's    claim  to  the    authorship  of 
Junius,  1  Woodtall's  Junius,  *133— *137.     See  ante,  I  57. 
26  LAW  OK  KVii).— V.  II.  (3607) 


7iO  ORAL  CONFESSIONS  TO  BE  RECEIVED  WITH  CAUTION.    [lART  II. 

who  are  sometimes  necessarily  called  in  cases  of  secret  and 
atrocious  crime, — all  tend  to  impair  the  value  of  this  kind  of 
evidence,  and  sometimes  lead  to  its  rejection,  where,  in  civil 
actions,  it  would  have  been  received.  The  weighty  observation 
of  Mr.  Justice  Foster  should  also  be  kept  in  mind,  that  "  this 
evidence  is  not,  in  the  ordinary  course  of  things,  to  be  disproved 
by  that  sort  of  negative  evidence,  by  which  the  proof  of  plain  facts 
may  be,  and  often  is,  confronted."  ' 

§  803.  In  addition  to  these  sources  of  distrust,  which  are  often  ?  "^90 
sufficient  to  raise  a  serious  doubt  whether  the  confession  given  in 
evidence  was  actually  made  by  the  prisoner  in  the  words,  or  to  the 
effect,  stated  by  the  witnesses,  there  is  yet  another  reason  why 
caution  should  be  employed  in  receiving  and  weighing  confessions. 
The  statements,  though  made  as  deposed  to,  may  be  false.  The 
prisoner,  oppressed  by  the  calamity  of  his  situation,  may  have 
been  induced  by  motives  of  hope  or  fear  to  make  an  untrue  confes- 
sion;"    and    tha    same    result  may  have    arisen   from    a    morbid 

'  Fost.  C.  L.  243.  See,  also,  1  Ph.  Ev.  307;  Lencli  v.  Lencli,  10  Yes.  518; 
Smith  v.  Buruhani,  3  Sumn.  438;  4  Bl.  Com.  357;  R.  v.  Crossfiekl,  2G  How. 
St.  Tr.  109,  per  Mr.  .\dams,  in  his  address  to  the  jury.  The  civilians  jilaced 
little  reliance  on  naked  confessions  of  guilt,  not  corroborated  by  other  testi- 
mony. Carpzovius,  after  citing  the  opinion  of  Severus  to  that  effect,  and 
enumerating  the  various  kinds  of  misery  which  tempt  its  wretched  victims  to 
this  mode  of  suicide,  adds — '"  quorum  omnium  ex  his  fontibus  contra  se  emissa 
pronunciatio,  non  tarn  delicti  confessione  firmati  quam  vox  doloris,  vel  in- 
sanientis  oratio  est."  Carpz.  Pract.  Rer.  Cr.  Pars.  III.  Qua^st.  114,  p.  160. 
So,  also,  in  the  Eccles.  Courts  it  is  regarded  with  great  distrust.  See  per  Sir 
W.  Scott,  in  Williams  r.  Williams,  1  Hagg.  Cons.  .304. 

^  *0f  this  character  was  the  remarkable  case  of  the  two  Boorns,  convicted  in 
the  Supr.  Court  of  Vermont,  in  Sept.  1819,  of  the  murder  of  Russell  Colvin, 
May  10,  1812.  It  appeared  that  Colvin,  who  was  the  brother-in-law  of  the 
prisoners,  was  a  person  of  weak  mind;  that  he  was  considered  burdensome  to 
the  family  of  the  prisoners,  who  were  obliged  to  supjiort  him;  that  on  the  day 
of  his  disappearance,  being  in  a  distant  field  where  the  prisoners  Avere  at  work, 
a  violent  quarrel  broke  out  between  thera;  and  that  one  of  them  struck  him  a 
violent  blow  on  the  back  of  the  head  with  a  club,  Avhich  felled  him  to  the 
ground.  Rome  suspicions  arose  at  that  time  that  he  was  murdered;  which 
were  increased  by  the  finding  of  his  hat  in  the  same  field  a  few  months  after- 
wards.    These  suspicions  in  jyrocess  of  time  subsided;  but,  in  1819,  one  of  the 


*  Gr.  Ev.  ?  214,  n.  2. 

(3608) 


CHAP.  XV.]  INSTANCES  OF  FALSE  CONFESSIONS.  741 

ambition  to  obtain  an  infamous  notoriety/  from  an  insane  or 
criminal  desire  to  be  rid  of  life,  from  a  reasonable  wish  to  break  off 
old  connexions,  and  to  commence  a  new  career,  from  an  almost 
pardonable  anxiety  to  screen  a  relative  or  a  comrade,"  or  even  from 
the  delusion  of  an  overwrought  and  fantastic  imagination.^ 

§  8G4.   Still,  the  actual  instances  of  false  confessions  of  crime    §  '790 
are  very  rare,  and  *  their  just  value  has  been  happily  stated  by  one 

neighbours  having  rejieatedly  dreamed  of  the  murder,  with  great  minuteness  of 
circumstance,  both  in  regard  to  his  death  and  the  concealment  of  his  remains, 
the  prisoners  -were  vehemently  accused,  and  generally  believed  guilty  of  the 
murder.  Upon  strict  search,  the  pocket-knife  of  Colvin  and  a  button  of  his 
clothes  were  found  in  an  old  open  cellar  in  the  same  field,  and  in  a  hollow 
stump  not  many  rods  from  it  were  discovered  two  nails  and  a  number  of 
bones,  believed  to  be  those  of  a  man.  Upon  this  evidence,  together  with  their 
deliberate  confession  of  the  fact  of  the  murder  and  concealment  of  the  body  in 
those  places,  the  prisoners  were  convicted  and  sentenced  to  die.  On  the  same 
day,  they  applied  to  the  Legislature  for  a  commutation  of  the  sentence  of  death 
to  that  of  perpetual  imprisonment;  which,  as  to  one  of  them  only,  was  granted. 
The  confession  being  now  withdrawn  and  contradicted,  and  a  reward  offered 
for  the  discovery  of  the  missing  man,  he  was  found  in  New  Jers(>y,  and  re- 
turned home  in  time  prevent  the  execution.  He  had  fled  for  fear  that  they 
would  kill  him.  The  bones  were  those  of  some  animal.  They  had  been 
advised  by  some  misjudging  friends,  that,  as  they  would  certainly  be  convicted 
upon  the  circumstances  proved,  their  only  chance  of  life,  by  commutation  of 
punishment,  depended  on  their  making  a  penitential  confession,  and  thereupon 
obtaining  a  recommendation  to  mercy.  This  case,  of  which  there  is  a  Report 
in  the  Law  Library  of  Harvard  University,  is  critically  examined  in  a  learned 
article  in  the  North  Amer.  Rev.  vol.  x.,  pp.  41S — 429.  For  another  case  of  false 
confession,  under  a  promise  of  pardon,  see  a  case  cited  in  note  to  Warickshall's 
case,  1  Lea.  264,  n. 

^  One  or  other  of  these  motives  probably  induced  Hubert  falsely  to  confess 
tliat  he  set  fire  to  London  in  1666.  His  confession  cost  him  his  life.  See  6 
How.  St.  Tr.  807—809,  819—821;  and  Wills,  Cir.  Ev.  70—75.  See,  also,  Gen- 
eral Lee's  assertion  that  he  was  the  author  of  Junius,  as  narrated  in  1  Wood- 
fall's  Junius,  *122,  *123. 

'■'  Mr.  Joy  mentions  the  case  of  an  innocent  j)erson  making  a  false  construc- 
tive confession,  in  order  to  fix  suspicion  on  himself  alone,  that  his  guilty 
l)rothers  might  have  time  to  escape,  — a  stratagem  which  was  completely  suc- 
cessful; after  which  he  proved  an  alibi  in  the  most  satisfact<iry  manner.  Joy 
on  Conf.  107;  1  Chit.  Cr.  L.  85,  S.  C. 

^  This  is  probably  the  true  key  to  the  frequent  confessions  of  the  poor 
wretches  who,  in  the  good  old  times,  were  wont  to  be  tried  for  witchcraft.  See 
Mary  Smith's  case,  2  How.  St.  Tr.  1049;  Essex  witches,  4  id.  817;  Suffolk 
witches,  6  id.  G47;  Devon  witches,  tried  in  1682,  8  id.  1017,  1037. 

*  Gr.  Ev.  'i  214,  n.  2. 

(3609) 


742         DELIBERATE  CONFESSIONS — JUDICIAL  CONFESSIONS.      [PART  II. 

of  the  most  accomplished  of  modern  jurists.  "AVhilst  such  anoma- 
lous cases,"  says  the  writer,  "  ought  to  render  courts  and  juries  at 
all  times  extremely  watchful  of  every  fact  attendant  on  confessions 
of  guilt,  the  cases  should  never  be  invoked,  or  so  urged  by  the 
accused's  counsel,  as  to  invalidate  indiscriminately  all  confessions 
put  to  the  jury,  thus  repudiating  those  salutary  distinctions  which 
the  court,  in  the  judicious  exercise  of  its  duty,  shall  be  enabled  to 
make.  Such  an  use  of  these  anomalies,  which  should  be  regarded 
as  mere  exceptions,  and  which  should  speak  only  in  the  voice 
of  warning,  is  no  less  unprofessional  than  impolitic;  and  should 
be  reorarded  as  offensive  to  the  intelligence  both  of  court  and 
jury.^ 


§  865.^  Indeed,  all  reflecting  men  are  now  generally  agreed,  g  791 
that  deliberate  and  volmitary  confessions  of  guilt,  if  clearly  j^roved, 
are  among  the  most  effectual  proofs  in  the  law;  their  value 
depending  on  the  sound  presumption,  that  a  rational  being  will 
not  make  admissions  prejudicial  to  his  interest  and  safety,  unless 
when  urged  by  the  promptings  of  truth  and  conscience.^  Such 
confessions,  therefore,  so  made  by  a  prisoner  to  any  person,  at 
any  time,  and  in  any  place,  are  at  common  law  receivable  in 
evidence,*  while  the  degree  of  credit  due  to  them  must  be  esti- 
mated by  the  jury  according  to  the  particular  circumstances  of  each 


§  866.^  Confessions  may  be  divided  into  two  classes,  namely, 
judicial  and  extra-judicial.  Judicial  confessions  are  those  which 
are  made  before  the  magistrate,  or  in  coui't,  in  the  due  course  of 
legal  proceedings;  and  it  is  essential  that  they  be  made  of  the 
free  will  of  the  party,  and  with  full  knowledge  of  the  nature  and 


'  1  Hoffman  on  Leg.  Study,  p.  367. 

2  Gr.  Ev.  §  215,  in  part. 

3  Warickshall's  ca.se,  1  Lea.  263;  2  East,  P.  C.  658,  S.  C;  Lambe's  case,  2 
Lea.  554,  555;  Mortimer  ?'.  Mortimer,  2  Hagg.  Cons.  315;  Harris  r.  Harris,  2 
Hagg.  Ec.  R.  409;  1  Gilb.  Ev.  216;  Dig.  lib.  42,  tit.  2,  de  Confess. ;  Van  Leeuw. 
Comm.  b.  v.  ch.  xxi.  |  1;  2  Poth.  Obi.,  App.  Numb.  xvi.  ^  13. 

*  Lambe's  case,  2  Lea.  554;  M'Nally,  Ev.  42,  47. 
'  Gr.  Ev.  ^  216,  as  to  first  twelve  lines. 

(3610) 


CHAP.   XV.]  EXTRA-JUDICIAL  CONFESSIONS.  7-43 

cousequeuce^  uf  tlie  confession.  Of  this  kind  are  the  preliminary 
examinations  taken  in  writing  by  the  magistrate  pursuant  to 
statute;  and  the  plea  of  guiKy  to  an  indictment,  made  in  open 
court.  Either  of  these  is  sufficient  by  itself  to  support  a  convic- 
tion, though  followed  by  a  sentence  of  death,  they  both  being 
deliberately  and  solemnly  made  under  the  protecting  caution  and 
oversight  of  the  Judge.  Even  on  trials  for  treason  or  misprision 
of  treason,  where  the  law  in  its  clemency  affords  to  the  accused 
unusual  protection,  a  " willing  confession  without  vioence  in  open 
court,"  renders  it  unnecessary  to  call  witnesses  in  support  of  the 
charge;'  and,  perhaps,  also, — thoiigh  this  would  seem  to  be  highly 
questionable," — a  confession  made  during  the  solemnity  of  an 
examination  before  a  magistrate  or  other  person  having  authority 
to  take  it,  will,  if  satisfactorily  proved  by  two  witnesses,  be 
deemed  sufficient  evidence  to  warrant  a  conviction.^  The  canon 
law,  too, — scrupulous  as  it  is  on  the  subject  of  evidence, — regards 
a  judicial  and  free  confession,  made  out  of  prison,  and  without  any 
just  fear  or  danger,  as  amounting,  in  the  phrase  of  the  Spiritual 
Courts,  to  a  plena  probatio.  *  The  doctrine  of  the  Roman  law 
was  also  to  the  like  effect, — confessos  in  jure  pro  judicatis  haberi 
placet; — and,  indeed,  it  may  be  deemed  a  rule  of  universal  juris- 
prudence.^ 

§  867.*  Extra-judicial  confessions  are  those  which  are  made  by  §  793 
the  party  elsewhere  than  before  a  magistrate,  or  in  court;  this 
term  embracing  not  only  express  confessions  of  crime,  but  all 
those  admissions  and  acts  of  the  accused  from  which  guilt  may 
be  implied.  All  voluntary  confessions  of  this  kind  are  receivable 
in  evidence,  on  being  proved  like  other  facts;  and  this,  too,  on 
trials  for  treason  or  misprision  of  treason,  in  like  manner  as  on 


'  7  W.  3,  c.  3,  I  2;  extended  to  Ireland  by  1  &  2  G.  4,  c.  24;  Gregg's  case, 

14  How.  St.  Tr.  1375. 

*  Berwick's   case,  Fost.  C.  L.  10:  18   How.  St.  Tr.   370,  S.  C;  R.  v.  Willis, 

15  How.  St.  Tr.  624,  per  Ward,  C.  B.,  and  643,  per  Eyre,  S.  G. 

'  Fost.  C.  L.  240—243.     See  post,  p.  744,  n.  \  *  Ayliffe  Par.  54i. 

*  Cod.  Lib.  7,  tit.  59;  1  Potli.  Obi.  pt.  iv.,  ch.  3,  ?  1,  num.  798;  Van  Leeuw. 
Coram,  b.  5,  ch.  21,  §  2;  1   Ma.sc.  de  Prob.,  Coucl.  344. 

*  Gr.  Ev.  §  216,  as  to  first  five  lines. 

(3611) 


744  CONFESSIONS — PROOF  OF  CORPUS  DELICTI.  [PABT  II. 

ordinary  iadictments;  except,  only,  that,  on  these  more  serious 
occasions,  they  will  not  supply  the  want  of  the  two  witnesses, 
whose  testimony  is  required  by  the  Act  of  William  the  Third. 
Consequently,  whether  these  confessions  be  proved  by  one  witness 
or  two,  they  can  only  be  treated  as  corroborative  evidence  of  the 
overt  act  charged;'  unless  such  overt  act  be  the  assassination  of 
the  Queen,  or  any  attempt  to  injure  her  person,  in  which  event  the 
accused  may  be  convicted  on  the  same  evidence  as  an  ordinary 
murderer." 


§  868.^  Whether  on  ordinary  indictments  for  felony  or  mis-  §  794 
demeanor,  extra-judicial  confessions,  uncorroborated  by  any  other 
proof  of  the  corpus  delicti,'^  are  of  themselves  sufficient  to  justify 
a  conviction  of  the  prisoner,  has  been  gravely  doubted.  In  the 
Roman  law,  such  naked  confessions  amounted  only  to  a  semiplena 
probatio,  upon  which  alone  no  judgment  could  be  founded;  and 
at  most,  the  accused,  in  particular  cases,  could  only  be  put  to  the 
torture.  But  if  voluntarily  made  in  the  presence  of  the  injured 
party,  or  if  reiterated  at  diflferent  times  in  his  absence,  and  per- 
sisted in,  they  were  received  as  plenary  proof.^  In  each  of  the 
English  cases  usually  cited  in  favour  of  the  sufficiency  of  this 
evidence,  some  corroborative  circumstance  will  be  found.^  Thus, 
in  the  case  of  Eldridge,'  who  was  indicted  for  horse-stealing,  the 
horse  was  found  in  his  possession,  and  he  had  sold  it  for  12Z.,  after 
asking  35?.,  which  was  its  fair  value.  In  the  cases  of  Falkner 
and  Bond,*  the  person  robbed  was  called  upon  his  recognizance, 
and  it  was  proved  that  one  of  the  prisoners  had  endeavoured 
to    send   a   message   to    him    to    keep    him    from    appearing.     In 


1  R.  r.  Willis,  15  How.  St.  Tr.  (J23— 625;  Fost.  C.  L.  240—243;  R.  v. 
Crossfield,  26  How.  St.  Tr.  55—57. 

''  39  &  40  G.  3,  c.  93;  1  &  2  G.  4,  c.  24,  §  2,  Ir. ;  5  &  6  V.,  c.  51,  ^  1. 

3  Gr.  Ev.  I  217,  in  part. 

*  As  to  when  the  corpus  delicti  need  not  be  proved,  see  ante,  |  141.  See, 
also,  R.  V.  Unkles,  I.  R.,  8  C.  L.  50. 

^  Everh.  Cone,  Concl.  xix.  8,  Ixxii.  5,  cxxxi.  1,  clxiv.  1,  2,  3,  clxxxvi.  2,  3, 
11;  1  Masc.  de  Prob.,  Concl.  347,  349;  Van  Leeuw.  Comm.  b.  5,  ch.  21,  ^§  4, 
5;  Carpz.  Pract.  Rer.  Cr.,  Pars  II..  Qusest.  60,  n.  8. 

«  See  R.  V.  Sutclifife,  4  Cox,  270. 

'  R.  &  R.  440.  8  Id.  481. 

(3612) 


CHAP.  XV.]  CONFESSION  OF  ADULTERY.  745 

White's  case  '  there  was  strong  circumstantial  evidence  both  of 
the  larceny  of  the  oats  from  the  prosecutor's  stable,  and  of  the 
prisoner's  guilt;  and  in  the  case  of  Tippet,"  who  was  indicted  for 
the  same  larceny,  part  of  this  evidence  was  also  given,  together 
with  the  additional  proof  that  the  prisoner  was  an  under-ostler  in 
the  same  stable.  In  all  these  cases,  too,  except  that  of  Falkner 
and  Bond,  the  confessions  were  solemnly  made  before  the  ex- 
amining magistrate,  and  taken  down  in  due  form  of  law;  while 
the  confessions  of  Falkner  and  Bond  were  repeated,  once  to  the 
officer  who  apprehended  them,  and  again  on  hearing  the  depo- 
sitions read  over  which  contained  the  charge.  So,  in  Stone's 
case,'^  Avhich  is  a  very  brief  note,  it  does  not  appear  that  the 
corpus  delicti  was  not  otherwise  px'oved;  on  the  contrary,  the 
natural  inference  from  the  report  is,  that  it  was.  Wheeling's 
case,  indeed,  seems  to  be  an  exception;  but  it  is  far  too  briefly 
reported  to  be  I'elied  on  as  an  authority,  for  it  merely  states  that 
"  in  the  case  of  John  Wheeling,  tried  beford  Lord  Kenyon,  at 
the  Summer  Assizes  at  Salisbury,  1789,  it  was  determined  that 
a  prisoner  may  be  convicted  on  his  confession,  when  proved  by 
legal  testimony,  though  it  is  totally  uncorroborated  by  any  other 
evidence."*  In  the  United  States,  the  prisoner's  confession, 
when  the  corpus  delicti  is  not  otherwise  proved,  has  been 
held  insufficient  to  warrant  his  conviction;  and  this  opinion 
certainly  best  accords  with  the  humanity  of  the  criminal  law, 
and  with  the  great  degree  of  caution  applied  in  receiving  and 
weighing  the  evidence  of  confessions  in  other  cases.  Moreover, 
it  seems  countenanced  by  approved  writers  on  this  branch  of  the 
law.^ 


§  869.  Whatever    may    be    the    correct   rule   with    respect    to    ?  794a 
uncorroborated   confessions   as    recognised    by  courts    of  criminal 
jurisdiction,  the  Divorce  Division  has  held,  that  a  decree  for  the 
dissolution    of    marriage  can    legally    rest   on   the    respondent's 


1  R.  &  R.  508.  2  Id.  509. 

»  Dyer,  215,  pi.  50.  *  1  Lea.  311,  n. 

^  Guild's  case,  5  Halst.  168,  185;  Long's  case,  1  Hayw.  524  (455);  4  Hawk. 
P.  C.  425,  B.  2,  c.  46,  I  36;  2  Russ.  C.  &  M.  825,  826,  n.  6.;  and  R.  v.  Edgar, 
there  cited. 

(3613) 


746  WHOLE  STATEMENT  MUST  BE  CONSIDERED.  [PART  II. 

admission  of  adultery,  though  unsupported  by  any  confirmatory 
evidence.'  Still,  proof  of  this  nature  ought  to  be  received  with 
the  utmost  caution,  and  no  judge  vpould  feel  justified  in  acting 
upon  it,  unless  the  admission  bore  internal  evidence  of  being  trust- 
worthy, and,  moreover,  amounted  to  an  unequivocal  acknowledg- 
ment of  adultery." 

§  870.'  In  the  proof  of  confessions,—  as  in  the  case  of  admissions 
in  civil  causes,* — the  tvhole  of  what  the  prisoner  said  on  the  subject, 
at  the  time  of  making  the  confession,  should  be  taken  together. 
This  rule  is  the  dictate  of  reason,  as  well  as  of  humanity.  The 
prisoner  is  supposed  to  have  stated  a  proposition  respecting  his 
own  connexion  with  the  crime;  but  it  is  not  reasonable  to  assume, 
that  the  entire  proposition,  with  all  its  limitations,  was  contained 
in  one  sentence,  or  in  any  particular  number  of  sentences,  exclud- 
ing all  other  parts  of  the  conversation.  As  the  meaning  of  a 
writing  must,  in  civil  cases,  be  collected  from  the  whole  taken 
together,  and  as,  when  several  instruments  relating  to  the  same 
matter  have  been  executed  at  one  time,  they  are  all  resorted  to  for 
the  purpose  of  ascertaining  the  intention  of  the  parties;  so  hei-e,  if 
one  part  of  a  conversation  is  relied  on,  as  proof  of  a  confession  of 
the  crime,  the  prisoner  has  a  right  to  lay  before  the  court  the 
whole  of  what  was  said  in  that  conversation;  or  at  least  so  much 
as  is  explanatory  of  the  part  already  proved,  and  perhaps,  in  favorem 
vitse,  all  that  was  relative  to  the  subject-matter  in  issue.^  For,  as 
already  observed  respecting  admissions,*^  unless  the  whole  is  con- 
sidered, the  true  meaning  of  the  part  which  is  evidence  against  him 
cannot  be  ascertained. 


871.   But  if,  after  the  entire  statement  of  the  prisoner  has  been 


'  Robinson  r.  Robinson  &  Lane,  1  Swab.  Sz  Trist.  362;  27  L.  J.,  Tr.  &  Mat. 
91,  S.  C;  Williams  v.  Williams  &  Padtiekl,  :V^  L.  J.,  Pr.  &  Mat.  8;  1  Law 
Rep.,  P.  &  D.  29,  S.  C. ;  Le  Marcliaut  v.  Le  Marchant  &  Kadc.liff,  45  L.  J.,  P. 
D.  &  A.  48.  '  Id. 

3  Gr.  Ev.  ?  218,  in  great  part.  *  Ante,   U.  72.5—7.34. 

5  Per  Ld.  C.  J.  Ab1)ott,  in  the  Queen  s  ca.se,  2  B.  &  B.  297,  298;  as  qualified 
by  the  court  in  Prince  r.  Samo,  7  A.  &  E.  634,  635;  R.  i-.  Jones,  2  C.  &  P.  629; 
K.  V.  Higgins,  2  C.  &  P.  603. 

*  Ante,  ^3  725—729,  and  cases  there  cited. 

(3614) 


CHAP.  XV.]        CONFESSIONS  IMPLICATING  OTHER  PERSONS.  747 

given  in  evidence,  the  prosecutor  can  contradict  any  part  of  it,  he 
is  at  liberty  to  do  so;  and  then  the  whole  testimony  is  left  to  the 
jury  for  their  consideration,  precisely  as  in  other  cases  where  one 
part  of  the  evidence  is  contradictory  to  another.'  Even  without 
such  contradiction  it  is  not  to  be  supposed  that  all  the  parts  of  a 
confession  are  entitled  to  equal  credit.  The  jury  may  believe  that 
part  which  charges  the  prisoner,  and  reject  that  which  is  in  his 
favour,  if  they  see  sufficient  grounds  for  so  doing."  If  what  he 
said  in  his  own  favour  is  not  contradicted  by  evidence  offered  by 
the  prosecutor,  nor  is  improbable  in  itself,  it  will  be  naturally 
believed  by  the  jury;  but  they  are  not  bound  to  give  weight  to  it 
on  that  account,  being  at  liberty  to  judge  of  it,  like  other  evidence, 
by  all  the  circumstances  of  the  case.^  And  if  the  confession 
implicate  other  persons  by  name,  still  it  must  be  proved  as  it  was 
made,  not  omitting  the  names  ;  but  the  judge  will  instruct  the 
jury,  that  it  is  not  evidence  against  any  one  but  the  prisoner  who 
made  it.*  This  last  proposition  was  strikingly  illustrated  in  the 
case  of  Kobinson  v.  Robinson  and  Lane,^  which  was  a  suit  for 
dissolution  of  marriage  on  the  ground  of  the  wife's  adultery, 
and  in  which  a  private  diary  kept  by  her,  describing  her  intri- 
gues with  the  co-respondent,  was  received  as  a  confession  against 
herself,  though  it  was  held  to  be  inadmissible  as  evidence  against 
her  paramour. 


§  872.®  Before  any  confession  can  be  received  in  evidence  in  a    ^  796 
criminal  case,  it  must  be  shown  to  have  been  voluntarily  made;  for, 
— to  adopt  the  somewhat  inflated  language  of  Chief  Baron  Eyre, — 


1  R.  V.  Jones,  2  C.  &  P.  629. 

"^  R.  V.  Higgins,  3  C.  &  P.  603,  per  Parke,  J. ;  R.  v.  Steptoe,  4  C.  &  P.  397, 
per  Park,  J. ;  Kesp.  v.  McCarty,  2  Dall.  86,  88. 

3  Per  Littledale,  J.,  in  R.  ?•.  Clewes,  4  C.  &  P.  221. 

*  R.  V.  Hearne,  4  C.  &  P.  215,  per  Littledale,  J.;  R.  v.  Clewe.s,  id.  221,  225 
per  id.;  R.  v.  Fletcher,  id.  250,  per  id.;  1  Lew.  C.  C.  107,  S.  C. ;  R.  v.  Hall 
1  Lew.  C.  C.  110,  per  Alderson,  P.  ;  R.  v.  Foster,  id.  per  Ld.  Denman,  R 
V.  Walkley,  6  C.  &  P.  175,  per  Gurney,  B.,  who  said  it  had  been  much  con 
sidered  by  the  judge.'^;  Parke,  J.,  thought  otherwise  in  Barstow's  case,  1  Lew 
C.  C.  110. 

*  27  L.  J.,  Pr.  &  Mat.  91;  1  Swab.  &  Trist.  362,  S.  C. 
«  Gr.  Ev.  ^  219,  la  part, 

(3615) 


T4S  CONFESSIONS  MUST  BE  VOLUNTARY.  [PART  II. 

"  a  confession,  forced  from  the  mind  by  the  flattery  of  hope,  or  by 
the  torture  of  fear,  comes  in  so  questionable  a  shape,  when  it  is 
to  be  considered  as  the  evidence  of  guilt,  that  no  credit  ought 
to  be  given  to  it;  and  therefore  it  is  rejected."  '  The  material 
question,  consequently,  is,  whether  the  confession  has  been  ob- 
tained by  the  influence  of  hope  or  fear;  and  the  evidence  to  this 
point,  being  in  its  nature  preliminary,  is, — as  we  have  seen,^ — ad- 
dressed to  the  judge,  who  will  require  the  prosecutor  to  show 
affirmatively,  to  his  satisfaction,  that  the  statement  was  not  made 
under  the  influence  of  an  improper  inducement,  and  who,  in  the 
event  of  any  doubt  subsisting  on  this  head,  will  reject  the  confes- 
sion.^ As  the  admission  or  rejection  of  a  confession  rests  wholly 
in  the  discretion  of  the  judge,  it  is  difficult  to  lay  down  particular 
rules,  a  priori,  for  the  government  of  that  discretion;  and  the  more 
so,  because  much  must  necessarily  depend  on  the  age,  experience, 
intelligence,  and  character  of  the  prisoner,  and  on  the  circumstances 
under  which  the  confession  was  made.*  Language  sufficient  to 
overcome  the  mind  of  one,  may  have  no  effect  upon  that  of 
another;  a  consideration  which  may  serve  to  reconcile  some  con- 
tradictory decisions,  where  the  principal  facts  appear  similar  in  the 
reports,  but  the  lesser  circumstances,  though  often  very  material  in 
such  preliminary  inquiries,  are  omitted.  Still,  it  cannot  be  denied, 
that  this  rule  has  been  sometimes  extended  much  too  far,  and 
been  applied  to  cases  where  no  reason  could  be  given  for  supposing 
that  the  inducement  had  had  any  influence  upon  the  mind  of  the 
prisoner.'' 

§  873.  Difficult  as  it  is  to  lay  down   any  definite  rule  on  this    ?  '^^'^ 
subject,  which  can  be  used  as  an  unerring  giiide  in  every  supposable 
case,  there  are  still  some  points,  both  in  regard  to  the  person  by 
whom  the   promise  or  threat  is  made,  and  also   in  regard  to  the 
nature  of  the  inducement  itself,  on  which  the  judges  appear  to  be 


1  In  Warif-kshall's  case,  1  Lea.  26.3,  264;  MoNally,   Ev.  47;  Knapp's  case, 
10  Pick.  489,  490;  Chabbock's  case,  1  Mass.  144.  ^  Ante,  |  23. 

*  R.  V.  Warringham,  2  Den.  447,  per  Parke,  B. 

*  McNally,  Ev.  43;  Nute'scase,  6  Petersd.   Abr.  82;  Knapp's  case,  10  Pick. 
496. 

*  See  the  observations  of  the  judges  in  R.  v.  Baldry,  2  Den.  430. 

(3616) 


CHAP.  XV.]       PROMISE  OR  TIIRP^AT  BY  PERSON  IN  AUTHORITY.  749 

pretty  generally  agreed,  and  a  knowledge  of  which  will  materially 
assist  the  inquiry,  whether  any  particular  confession  should  be 
admitted  in  evidence  or  rejected.  And  '  lirst,  as  to  the  j)erson  by 
whom  the  inducement  is  offered.  Here  it  is  very  clear,  that  if  the 
promise  or  threat  be  made  by  any  one  having  authority  over  the 
prisoner  in  connexion  with  the  j)rosecution," — as,  for  instance,  by 
the  prosecutor,^  the  master  or  mistress  of  the  prisoner,  when  the 
offence  concerns  such  master  or  mistress,*  the  constable,^  or  other 
officer,"  having  him  in  custody,  a  magistrate,^  or  the  like,^ — the 
confession  will  bo  rejected  as  not  being  voluntary.  And  the  same 
rule  will  perhaps  prevail,  though  the  inducement  was  not  actually 
offered  by  the  person  in  authority,  if  it  were  held  out  by  any  one  in 
his  pi'esence,  and  he  by  his  silence  has  sanctioned  its  being  made.' 

§  874.  In  these  cases,  as  the  authority  possessed  by  the  persons    ^  793 

'  Gr.  Ev.  §  222,  in  part. 

^  R.  V.  Parratt,  4  C.  &P.  570,  per  Alderson,  B.,  Tvliich  was  a  confession  by 
a  sailor  to  his  captain,  who  threatened  him  with  prison  on  a  charge  of  stealing 
his  watch;  R.  v.  Thompson,  1  Lea.  291;  R.  v.  Fleming,  1  Arm.  M.  &  O.  330. 

^  R.  V.  Cass,  1  Lea.  293,  n.  a,  per  Gould,  J.;  R.  v.  Jones,  R.  &  R.  152;  R. 
V.  Jenkins,  id.  492. 

*  R.  V.  Moore,  3  C.  &  Kir.  153;  2  Den.  522,  527,  S.  C. ;  R.  v.  Warringham, 
2  Den.  447,  n. ;  R.  v.  Upchurch,  1  Moo.  C.  C.  465;  R.  v.  Taylor,  8  C.  &  P. 
734,  per  Patteson,  J. ;  R.  v.  Hearn,  C.  &  Marsh.  109,  per  Coltman,  J. ;  R.  v. 
Hewett,  id.  534,  per  Patteson,  J. 

*  R.  V.  Morton,  2  M.  &  Rob.  514,  per  Coleridge,  J. ;  R.  r.  Swatkins,  4 
C.  &  P.  548,  per  Patteson,  J. ,  R.  v.  Mills,  6  id.  146,  per  Gurney,  B. ;  R.  v. 
Shepherd,  7  id.  579,  per  Gaselee,  J. 

^  In  R.  V.  Enoch,  5  C.  &  P.  539,  Park  and  Taunton,  Js.,  rejected  a  confession, 
where  the  prisoner  was  left  in  charge  of  a  woman,  to  whom  she  confessed;  and 
in  R.  V.  Windsor,  4  Fost.  &  Fin.  366,  Channell,  B.,  and  Crompton,  J.,  laid 
down  the  law  in  a  similar  manner.  Sed  qu.,  and  see  R.  v.  Sleeman,  Pearce 
&  D.  249;  and  R.  v.  Vernon,  12  Cox,  1.53. 

^  R.  V.  Drew,  8  C.  &  P.  140,  per  Coleridge,  J.;  R.  v.  Cooper,  5  C.  &  P.  535, 
per  Parke,  J. ;  Guild's  case,  5  Halst.  163. 

**  Qu.  a  surgeon;  see  R.  v.  Kingston,  4  C.  &  P.  387;  R.  v.  Garner,  3  Sess. 
Cas.  329;  1  Den.  329;  2  C.  &  Kir.  920,  S.  C.  In  this  last  case  the  induce- 
ment was  held  out  by  a  surgeon,  but  in  the  presence  of  the  prisoner's  master. 
Qu.  also,  the  husband  of  the  prisoner,  R.  v.  Laugher,  2  C.  &  Kir.  225. 

»  R.  V.  Pountney,  7  C.  &  P.  302,  per  Alderson,  B. ;  R.  v.  Taylor,  8  C.  &  P. 
734,  per  Patteson,  J.;  R.  v.  Drew,  8  C.  &  P.  140,  per  Coleridge,  J.;  R.  v. 
Simpson,  1  Moo.  C.  C.  410,  explained  in  Joy  on  Conf.  9 — 11  ;  R.  v.  Laugher, 
2  C.  &  Kir.  225,  per  Pollock,  C.  B. ;  R.  v.  Luckhurst,  Pearce  &  D.  245.  But 
see  R.  V.  Parker,  L.  &  Cave,  42;  8  Cox,  465,  S.  C. 

(3617) 


750       INDUCEMENT  HELD  OUT  BY  PRIVATE  PERSON.     [PART  II. 

wlio  make  or  sanction  the  inducement  is  calculated  both  to  animate 
the  prisoner's  hopes  of  favour,  on  the  one  hand,  and,  on  the  other, 
to  inspire  him  with  awe,  and  in  some  degree  to  overcome  the  powers 
of  his  mind,  the  law  assumes  the  possibility,  if  not  the  probability, 
of  his  making  an  untrue  admission,  and,  consequently,  withdraws 
from  the  consideration  of  the  jury  any  declaration  of  guilt,  which 
the  prisoner  under  these  circumstances  may  be  induced  to  make. 
Moi-eover, — and  this  is  a  more  sensible  reason  for  the  rule, — ,the 
admission  of  such  evidence  would  naturally  lead  the  inferior  agents 
of  the  police,  while  seeking  to  obtain  a  character  for  activity  and 
zeal,  to  harass  and  oppress  unfortunate  prisoners,  in  the  hope  of 
wringing  from  them  a  reluctant  confession.  It  has  been  argued, 
with  apparent  reason,  that  a  confession  made  upon  the  promises  or 
threats  of  a  person,  assuming  to  act  in  the  capacity  of  an  officer  or 
magistrate,  and  erroneously  believed  by  the  prisoner  to  possess  such 
authority,  ought,  upon  the  above  principles,  to  be  excluded;  but 
the  point  is  not  known  to  have  received  any  judicial  consideration. 

§  875.*  Whether  a  confession  made  to  a  person,  who  having  no  I  799 
authority  has  held  out  an  inducement,  will  be  receivable,  is  a  ques- 
tion upon  which  learned  judges  are  known  to  entertain  opposite 
opinions.^  On  two  occasions,  Mr.  Justice  Bosanquet  distinctly 
held  that  the  fact  of  any  person  telling  a  prisoner  that  it  would  be 
better  for  him  to  confess,  would  always  exclude  any  confession 
made  to  that  person;^  and  one  or  two  other  cases  may  perhaps  be 
cited  in  support  of  the  same  view.*     On  the  other  hand,  Mr.  Justice 


'  Gr.  Ev.  I  223,  in  part. 

*  R.  Spencer,  7  C.  &  P.  776,  per  Parke,  B.  See,  also,  R.  v.  Pountney,  id. 
302,  per  Alderson,  B.  ;  R.  v.  Gibbons,  1  C.  P.  98,  n.  b. 

^  R.  V.  Dunn,  4  C.  &  P.  543;  R.  v.  Slaughter,  id.  544,  n.  h.  In  R.  v. 
Downing,  Chelmsford  Sp.  Ass.  1840,  MS.,  where  a  woman  was  indicted  for 
child-murder,  a  confession  made  by  her  to  an  elderly  woman,  who  was  her 
neighbour  and  nurse,  and  who  told  her  it  was  better  for  her  to  confess,  was 
held  by  Ld.  Abinger  to  be  inadmissible;  and  his  lordship  refused  to  admit 
evidence  of  a  confession  subsequently  made  to  a  surgeon.     Sed  qu. 

*  For  instance,  R.  v.  Kingston,  4  C.  &  P.  387,  where  Parke  and  Littledale, 
Js.,  rejected  a  confession  made  to  a  surgeon  who  had  held  out  an  inducement. 
Perhaps,  however,  this  case  may  rest  on  the  gi-ound  that  the  surgeon  wiis  a 
person  in  authority.  In  R.  r.  Walkley,  6  C.  &  P.  175,  where  evidence  of  a 
confession  was  held  inadmissible  by  Gurney,   B.,  it  does  not  appear,  whether 

(3618) 


CHAP.  XV.]   INDUCEMENT  HELD  OUT  BY  PRIVATE  PERSON.       751 

Patteson  is  reported  to  have  said,  in  a  more  recent  case,  that,  in 
the  opinion  of  the  judges,  any  confession  is  receivable,  unless  some 
inducement  has  been  held  out  by  a  person  in  authority ;  and  his 
lordship  added,  with  reference  to  the  particular  facts  of  the  case 
before  him,  that  he  would  have  received  in  evidence  the  statement 
made  by  the  prisoner  to  an  indifferent  person,  had  the  inducement 
been  offered  by  such  person  alone.' 

§  870.  Both  these  contradictory  decisions  would  seem  to  be  open  I  800 
to  one  and  the  same  objection ;  namely,  they  endeavour  to  define, 
ns  a  strict  rule  of  law,  what , circumstances  shall  be  deemed,  in  all 
cases,  to  have  unduly  influenced  the  mind  of  the  prisoner  in  making 
the  confession.  Now,  although  such  a  rule  has  been  laid  down 
with  reference  to  inducements  offered  by  persons  in  authority, 
because,  being  thought  to  succeed  in  a  large  majority  of  instances, 
it  has,  for  the  sake  of  uniformity  and  precision,  been  wisely  adopted 
as  applicable  to  them  all;  yet  it  by  no  means  follows,  that  the  same 
rule  will  equally  apply  to  all  promises  and  threats  held  out  by 
private  persons.  These  last  inducements  may  vary  in  their  effect 
to  almost  any  conceivable  extent.  They  will  often  be  obviously 
insufficient  to  produce  the  slightest  influence  on  even  the  feeblest 
mind;  and,  in  such  cases,  the  confession  which  follows,  but  which, 
in  fact,  is  not  consequent  on  them,  should  be  admitted  in  evidence. 
On  the  other  hand,  an  inducement  held  out  by  a  private  individual 
may  be,  and,  indeed,  frequently  is,  quite  as  much  calculated  to 
cause  the  prisoner  to  utter  an  untrue  statement,  as  any  promise 
made  to  him  by  a  person  in  authority;  in  these  cases  the  con- 
fession made  to  such  private  person  should  be  excluded.  It  is 
therefore  submitted,  that,  without  laying  down  any  positive  rule, 
whether  of  admission  or  rejection,  the  judge  should  determine  each 
case  on  its  own  merits;  only  bearing  in  mind,  that  his  duty  is  to 
reject  such  confessions  only,  as  would  seem  to  have  been  wrung 
from  the  prisoner,  under  the  supposition  that  it  would  be  best  for 


or  not  the  witness,  to  whom  the  statement  was  made,  and  who  had  offered  the 
inducement,  was  a  person  in  authority;  and  the  same  observation  applies  to 
the  case  of  R.  v.  Thomas,  id.  353,  per  Patteson,  J.  See,  also,  Guild's  case, 
5  Halst.  163  ;  and  Knapp's  case,  10  Pick.  496,  500—510. 

1  R.  V.  Taylor,  8  C.  &  P.  734  ;  R.  v.  Sleeman,  Pearce  &  D.  249. 

(3619) 


752         CONFESSION    MADE    AFTER    INDUCEMENT    HELD    OUT.    [PAKT   11, 

birn  to  admit  that  he  was  guilty  of  an  offence  which  he  really  never 
committed.' 


§  877.''  Be  the  law,  however,  on  this  particular  point  what  it  i  BOl 
may,  thus  much  is  clear,  that  a  promise  or  threat  made  by  an 
indifferent  person,  who  has  officiously  interfered  without  any  kind 
of  authority,  will  never  operate  to  exclude  a  confession  made  to  any 
other  2^e''son,  who  has  not  himself  sanctioned  the  inducement.^ 
This  rule  is  founded,  partly,  on  the  supposition  that  such  induce- 
ments will  seldom  much  influence  the  conduct  of  the  prisoner;  but 
chiefly,  on  the  ground  that,  were  a  contrary  rule  to  prevail,  it  would 
probably  open  a  wide  door  to  collusive  practices,  and  would  cer- 
tainly go  far  towards  rendering  all  confessions  inadmissible. 
Prisoners,  who  wished  to  avoid  the  consequences  of  their  inconve- 
nient acknowledgments  of  guilt,  might  with  ease  find  associates 
ready  to  afiirm,  that  they  had  advised  them  to  confess;  and  even  if 
this  stratagem  were  not  attempted,  injudicious  advice  given  by 
meddling  persons,  would  frequently  have  the  effect  of  shutting  out 
a  distinct  and  positive  confession,  and  of  thus  embarrassing  the 
course  of  criminal  justice. 

§  878.  Where  promises  or  threats  have  been  once  used  of  such  a  ?  802 
nature  as  to  render  a  confession  inadmissible,  all  subsequent  admis- 
sions of  the  same  or  the  like  facts  will  be  rejected,  unless  from  the 
length  of  time  intervening,  from  proper  warning  of  the  consequences, 
or  from  other  circumstances,  there  be  good  reason  to  presume,  that 
the  delusive  hope  or  fear  which  influenced  the  first  confession  has 
been  effectual hj  dispelled.*     Where,'^  however,   it   appears,  to  the 


1  E.  V.  Court,  7  C.  &  P.  487,  per  Littledale,  J.  '  Gr.  Ev.  ?  223,  in  part. 

3  R.  V.  Gibbons,  1  C.  &  P.  87,  per  Park,  J.,  and  Hullock,  B. ;  R.  v.  Hard- 
wick,  id.  98,  n.  b.  per  Wood,  B. ;  R.  v.  Row,  R.  &  R.  153  ;  R.  r.  Tyler,  1  C.  &  P. 
129,  per  Hullock,  B. 

*  Joy  on  Conf.  69  ;  Guild's  case,  5  Halst.  180 ;  R.  v.  Hewett,  C.  &  Marsh. 
534,  per  Patteson,  J.,  recognising  Meynell's  case,  2  Lew.  C.  C.  122, per  Taunton, 
J.;  Sherrington's  case,  id.  123,  per  Patteson,  J.;  R.  i'.  Cooper,  o  C.  &  P.  535, 
per  Parke,  J.;  Bell's  case,  cited  in  Joy  on  Conf.  71,  and  in  McXally,  Ev.  43, 
per  Ld.  Kilwarden,  C.  J.,  and  Carleton,  C.  J.  of  C.  P.;  R.  v.  Rosa  Rue,  13  Cox, 
209  ;  Roberts'  f>ase,  1  Dev.  259,  294  ;  R.  v.  Walsh,  Ir.  Cir.  R.  8G6,  per. 
Jackson,  J,  *  Gr.  Ev.  'i  221,  in  part.     See  R.  v.  Doherty,  13  Cox,  23. 

(3620) 


■  CHAP.  XV.]  CONFESSION  MADE  AFTER  INDUCEMENT  HELD  OUT.     753 

satisfaction  of  the  judge,  that  the  improper  influence  was  totally  done 
away  before  the  confession  was  made,  the  evidence  will  be  received.' 
Thus,  where  a  magistrate  told  a  prisoner  charged  with  murder, 
that  if  he  was  not  the  man  who  struck  the  fatal  blow,  and  would 
disclose  all  he  knew  respecting  the  matter,  he  would  use  his  in- 
fluence to  protect  him;  but  on  subsequently  receiving  a  letter  from 
the  Secretary  of  State  refusing  mercy,  he  communicated  its  contents 
to  the  prisoner,  it  was  held  that  a  confession,  which  the  prisoner 
afterwards  made  to  the  coroner,  who  had  also  duly  cautioned  him, 
was  clearly  voluntary,  and  as  such  it  was  admitted."  So,  where  the 
accused  had  been  induced  by  promises  of  favour  to  make  a  confes- 
sion, which  was  for  that  cause  excluded,  but  some  months  after- 
wards, and  after  he  had  been  solemnly  warned  by  two  magistrates 
that  he  must  expect  death  and  prepare  to  meet  it,  he  again  fully 
acknowledged  his  guilt,  this  latter  confession  was  received  in 
evidence.'^  Indeed,  it  may  be  generally  laid  down,  that,  though  an- 
inducement  has  been  held  out  by  an  officer,  a  prosecutor,  or  the 
like,  and  though  a  confession  has  been  made  in  consequence  of  such 
inducement,  still,  if  the  prisoner  be  subsequently  warned  by  a 
person  in  equal  or  superior  authority,  that  what  he  may  say  will  be 
evidence  against  himself,  or  that  a  confession  will  be  of  no  benefit 
to  him, — or  if  he  be  simply  cautioned  by  the  magistrate  not  to  say 
anything  against  himself, —  any  admission  of  guilt  afterwards  made, 
will  be  received  as  a  voluntary  confession.*  More  doubt  may  be 
entertained  as  to  the  law,  if  the  promise  has  proceeded  from  a 
person  of  superior  authority,  as  a  magistrate,  and  the  confession 
is  afterwards  made  to  an  inferior  officer;  because  a  caution  from 
this  latter  person  might  be  insufficient  to  efface  the  expecta- 
tion of  mercy,  which  had  previously  been  raised  in  the  prisoner's 
mind.^ 


*  See  R.  V.  Cheverton,  2  Fost.  &  Fin.  833. 

2  E.  V.  Clewes,  4  C.  &  P.  221,  per  Littledale,  J.     See,  also,  R.  v.  Dingley, 
1  C.  &  Kir.  637. 
»  Guild's  case,  5  Halst.  163,  168. 

*  R.  V.  Howes,  6  C.  &  P.  404,  per  Ld.  Denman;  R.  i-.  Lingate,  1  Ph.  Ev. 
410;  R.  V.  Rosier,  id.  410,  411;  R.  v.  Bryan,  Jebb,  C.  C.  157;  Joy  on  Conf. 
72—74.     See  R.  v.  Richards,  5  C.  &  P.  318. 

^  R.  V.  Cooper,  5  C.  &  P.  535,  per  Parke,  J. 

(.3621) 


754  THE  IXDUCEMENT  MUST  REFER  TO  THE  CHARGE.       [PART  II. 

§  879.  Passing  now  to  the  nature  of  the  inducement,  it  may  g  803 
be  laid  down  as  a  general  rule,  that  in  order  to  exclude  a  con- 
fession, the  inducement,  whether  it  assume  the  shape  of  a  pro- 
mise, a  threat,  or  mere  advice,  must  have  reference  to  the  prisoner's 
escape  from  the  criminal  charge  against  him.  It  is  not  here 
meant  that  at  the  time  when  the  inducement  is  held  out,  the 
charge  against  the  prisoner  must  actually  have  been  made;  for 
where  a  man  was  threatened  to  be  given  into  custody  without 
any  offence  being  then  specified,  but  afterwards  the  nature  of  the 
charge  was  stated,  and  he  confessed  his  guilt,  the  judges  held  that 
the  confession  was  not  admissible.'  Still,  the  promise  or  threat, 
to  have  the  eifect  of  excluding  the  statement,  must  be  such  as  is 
calculated  to  influence  the  prisoner's  mind  with  respect  to  his 
escape  from  the  charge.  A  confession,  therefore,  will  be  received, 
though  it  were  induced  by  spiritual  exhortations,  whether  of  a 
clergyman,^  or  of  any  other  person;^  for  such  a  confession  can 
scarcely  be  regarded  as  wn^rite ;  and  the  law  of  England,  Ireland, 
and  America, — unlike  that  which  prevails  in  Scotland,*  or  in  other 
countries  subject  to  the  Roman  law,^ — does  not,  as  will  presently 
be  pointed  out,''  regard  penitential  confessions  to  a  priest  in  the 
light  of  privileged  communication. 

Again,  a  promise  of  some  merely  collateral  benefit  or    §  803 


^  R.  V.  Luckhurst,  Pearce  &  D.  245. 

^  R.  V.  Gilham,  1  Moo.  C.  C.  186;  explained  in  Joy  on  Conf.  52 — 56;  Com. 
V.  Drake,  15  Mass.  161.  But  see  R.  v.  Griffin,  6  Cox,  219,  cited  post,  p.  789,  ad 
fin.  n.  5. 

=*  R.  r.  Wild,  1  IVIoo.  C.  C.  452;  R.  r.  Xnte,  2  Russ.  C.  &  ISI.  832,  833; 
recognised  in  R.  v.  Hewett,  C.  &  Marsh.  536,  per  Patteson,  J. ;  R.  v.  Gibney, 
Jebb,  C.  C.  15;  R.  v.  Sleeman,  Pearce  &  D.  249. 

*  2  Alison,  Cr.  L.  of  Scot.  586,  cited  in  Joy  on  Conf.  57,  n.  a,  58. 

^  In  the  Roman  law  penitential  confessions  to  the  priests  are  encouraged  for 
the  relief  of  the  conscience,  and  the  priest  is  bound  to  secrecy  by  the  peril  of 
punishment.  "  Confessio  coram  sacerdote  in  penitentia  facta  non  probat  in 
judicio;  quia  censetur  facta  coram  Deo ;  imo,  si  sacerdos  eam  enunciet,  incidit 
in  pcenam."  1  Masc.  de  Prob.,  Concl.  377.  It  was  lawful,  however,  for  the 
priest  to  testify  in  such  cases  to  the  fact,  that  the  party  had  made  such  a 
penitential  confession  to  him  as  the  Church  requires,  and  that  he  had  enjoined 
penance  upon  him;  and,  with  the  express  consent  of  the  penitent,  he  might 
lawfully  testify  to  the  substance  of  the  confession  itself.     Id. 

6  Post,  II  916,  917. 

(3622) 


CHAP.  XV.]     THE  INDUCEMENT  MUST  RELATE  TO  THE  CHARGE.  755 

boon,  as  for  instance,  a  promise  to  give  the  prisoner  some  spirits,' 
or  to  strike  ofiP  his  hand-cuffs,-  or  to  let  him  see  his  wife,^  will  not 
be  deemed  such  an  inducement  as  will  authorise  the  rejection  of  a 
confession  made  in  consequence.  Neither  will  an  inducement 
held  out  to  a  prisoner  with  reference  to  one  charge,  exclude  a 
consequent  confession  which  relates  to  another;*  unless  the  two 
offences  be  so  blended  together  as  to  constitute  in  reality  but  one 
transaction.^  So,  where  a  woman  was  indicted  for  concealing  the 
birth  of  her  child,  her  acknowledgment  that  she  had  been  confined 
has  in  Ireland  been  received  in  evidence,  though  made  in  conse 
quence  of  the  doctor  having  threatened  that  he  would  examine  her 
person."  It  is  right,  however,  to  add  that,  under  precisely  similar 
circumstances,  two  English  judges  of  ability  have  refused  to  admit 
evidence  so  obtained,'  and,  consequently,  this  last  point  must  be 
considered  as  one  still  open  to  debate.  Be  this  as  it  may,  confes- 
sions will  in  general  be  admitted,  though  caused  by  intimidating 
language,  provided  the  intimidation  has  had  no  reference  to  the 
charge,  and  was  not  otherwise  calculated  to  produce  any  untrue 
statement.^ 


§  881.'     Moreover,  if  no  inducement  has  been  held  out  relating    §  804 
to  the  charge,  it  matters  not  in  tvhat  icay  the  confession  has  been 
obtained;  for  whether  it   were  induced  by  a  solemn   promise  of. 
secrecy,  even  confirmed  by  an  oath;'"  or  by  reason  of  the  prisoner 
having  been  made  drunken;^^   or  even,  by   any  decejMon  practised 


'  R.  V.  Sexton,  cited  in  Joy  on  Conf.  17 — 19,  is  to  the  contrary;  but  this  case, 
which  was  decided  by  Best.  J.,  is  probably  not  law.  See  observations  of  Mr. 
Greaves  in  2  Russ.  C.  &  M.  827,   n.  k. 

■  R.  V.  Green,  6  C  &  P.  G55,  per  Bosanquet  and  Taunton,  Js. 

•'  R.  V.  Lloyd,  6  C.  &  P.  393,  per  Patteson,  J. 

*  \i.  r.  Warner,  citsd  2  Russ.  C.  &  M.  845,  per  Littledale,  J. 

^  R.  r.  Hearn,  C.  &  Marsh.  109,  perColtman,  J. 

«  R.  r.  Cain,  1  Craw.  &  D.  C.  C.  37. 

'  R.  V.  Bowder,  decided  at  the  Liverpool  Assizes,  Dec.  1859,  by  Martin,  B., 
after  consulting  Willes,  J. ;  MS.  ex  relatione,  Mr.  Ch.  Hy.  Hopwood. 

«  See  R.  V.  Thornton,  1  Moo.  C.  C.  27,  28.  "  Gr.  Ev.  ^  229,  in  part. 

"  R.  V.  Shaw,  6  C.  &  P.  372,  per  Patteson,  J.,  Com.  v.  Knapp,  9  Pick.  496, 
500—510. 

"  R.  V.  Spilsbury,  7  C.  &  P.  187,  per  Coleridge,  J.,  qu.  on  the  ground  that 
27  LAW  OF  EVID. — V.  II.  (3623) 


750  COXFKSSIONS  MAY  BE  ELICITED  BY  QUESTIONS.  [PAKT  II. 

upon  biin,  or  false  representation  made  to  him  for  that  purpose;' 
it  will  be  ecpuvlly  admissible,  however  much  the  mode  of  obtaining 
it  may  be  ojjeu  to  censure,  or  may  render  the  statement  itself 
liable  to  suspicion.  Much  less  will  a  confession  be  rejected, 
merely  because  it  has  been  elicited  by  questions  put  to  the 
prisoner,  whether  by  a  magistrate,"  officer,''  or  private  person;* 
and  the  form  of  the  question  is  immaterial,  even  though  it  assumes 
the  prisoner's  guilt. ^  So,  if  a  prisoner  makes  a  confession  under 
the  hope,  held  out  by  a  person  not  in  authority,  that  he  will 
thereby  be  admitted  as  Queen's  evidence,  it  will  be  received 
against  him;''  and  the  same  result  will  follow,  though  his  hopes 
have  been  excited  by  a  constable  or  other  officer,  if  on  the  trial 
of  his  accomplices  he  refuses  to  make  a  full  disclosure,  and  thus 
violates  the  condition  on  which  his  claim  to  favour  can  alone 
rest.^  So,  what  the  accused  has  been  overheard  muttering  to 
himself,  or  saying  to  his  wife  or  to  any  other  person  in  confidence, 


in  vino  Veritas.  In  the  case  of  R.  v.  Sippet,  Avhich  was  tried  at  Maidstone  Ass. 
1839,  a  confession,  made  hy  the  jmsoner  «7h7c  talking  in  hi^  sleep,  was  tendered 
in  evidence;  but  as  Tindal,  C.  J.,  doubted  its  admissibility,  it  Avas 
■withdrawn.     MS. 

•  R.  V.  Derrington,  2  C.  &  P.  418,  per  Garrow,  B.;  R.  r.  Burley,  2  St.  Ev.  13, 
,n,  z,  and  37,  per  Garrow,  B.,  afterwards  confirmed  by  all  the  judges. 

-  R.  r.  Rees,  7  C.  &  P.  569,  per  Ld.  Dentnan;  R.  v.  Bartlett,  id.  832,  per 
Bolland,  B. ;  R.  v.  Ellis,  Ry.  &  M.  432,  per  Littledale,  J.,  citing  a  similar 
decision  of  Holroyd,  J.,  and  overruling  R.  r.  Wilson,  Holt,  N.  P.  R.  597,  per 
Richards,  C.  B. 

='  R.  r.  Thornton,  1  Moo.  C.  C.  27;  R.  v.  Gibney,  Jebb,  C.  C.  15;  R.  r.  Kerr, 
8  C.  &  P.  176;  R.  v.  Johnston,  15  Ir.  Law  R.  N.  S.  60,  per  8  r.  3,  Js.  The  case 
of  R.  V.  Devlin,  2  Crawf  &  D.,  C.  C.  152,  is  contra,  but  seems  not  to  be 
law. 

*  R.  V.  Wild,  1  Moo.  C.  C.  452. 

=  R.  v.  Wild,  1  Moo.  C.  C.  452;  R.  v.  Thornton,  id.  27;  R.  v.  Kerr,  8  C.  &  P. 
179,  per  Park,  J.;  Anon.,  per  Littledale,  J.,  cited  1  Ph.  Ev.  406.  In  the  case 
of  R.  V.  Doyle,  1  Crawf.  &  D.,  C.  C.  396,  a  constable,  after  cautioning  the 
prisoner,  asked  her  how  so  much  of  her  blue  came  into  the  child's  stomach, 
and  Bushe,  C.  J.,  is  reported  to  have  rejected  the  answer;  but  this  case,  it  is 
submitted,  is  not  law.     See  Joy  on  Conf  32 — 41,  42 — 44. 

"  R.  V.  Berigan,  Ir.  Cir.  R.  177,  per  Crampton,  J.  This  case  seems  to  over- 
rule R.  V.  Hall,  2  Lea,  560,  n.,  per  Mr.  Sergt.  Adair.  See  R.  v.  Boswell,  C.  & 
Marsh.  584;  R.  v.  Blackburn,  6  Cox,  333.     See,  also,  post,  I  885. 

^  R.  V.  Dingley,  1  C.  &  Kir.  640,  per  Pollock,  C.  B. ;  R.  v.  Burley,  2  St.  Ev. 
13,  n.  z,  approved  of  by  all  the  judges.     See  R.  v.  Gillis,  11  Cox,  69. 

(3624) 


CHAP.  XV.  ]  now  FAR  PROPER  TO  CAUTION  PRISONER.  757 

will  be  receivable  in  evidence;'  though  the  wife,  solicitor,  and 
couQsel  of  the  prisoner  will  not,  on  grounds  that  will  be  presently 
explained,  be  themselves  allowed  to  reveal  what  he  has  said  to 
them."  A  voluntary  confession,  too,  is  admissible,  to  whom- 
soever it  may  have  been  made,  though  it  does  not  appear  that 
the  prisoner  was  teamed  that  what  he  said  would  be  used  against 
him;  nay,  though  it  appears  on  the  contrary  that  he  was  not  so 
warned.^ 


§  882.  In  most  cases,  indeed,  it  may  be  advisable  and  proper  ?  805 
to  caution  the  prisoner  in  general  terms,  that  any  confession  he 
makes  will  be  admissible  against  him  at  the  trial,  and  can  do 
him  no  service;*  because,  if  it  should  turn  out  that  any  threat 
or  inducement  has  been  previously  held  out  by  some  person  in 
authority,  the  confession,  which  is  unaccompanied  by  such  caution, 
will,  as  before  stated,^  be  inadmissible.  Still,  it  is  not  necessary, 
in  general,  to  do  more  than  to  show  that  the  party  receiving  the 
confession  left  the  prisoner  at  full  liberty  to  act  and  judge  for 
himself;  and  though  it  should  appear  that  immediately  before  the 
admission  was  made  the  accused  was  in  the  custody  of  another 
person,  the  court,  unless  some  reason  exists  for  suspecting  collu- 
sion, will  not  compel  the  prosecutor  to  call  such  person  as  a 
witness,  or  to  prove  that  he  did  not  hold  out  any  threat  or  induce- . 
ment.*^  In  order,  however,  to  free  the  evidence  from  all  reason- 
able objection,  it  will  be  prudent,  especially  in  important  cases, 
to  call  any  persons  in  authority,  who,  shortly  before  the  confession 


^  It.  r.  Simons,  6  C.  &  P.  541,  per  Alderson,  B.  In  R.  r.  Pamenter,  12  Cox, 
177,  Kelly,  C.  B.,  is  reported  to  have  held  that  a  letter  written  by  a  prisoner 
to  his  wife,  and  intercepted  by  a  constable  who  had  undertaken  to  post  it,  was 
Inadmissible.     But  this  case  would  seem  not  to  be  laAv. 

■'  Post,  U  009—915;  R.  v.  Shaw,  6  C.  &  P.  373.  per  Patteson,  J. 

3  R.  V.  Thornton,  1  Moo.  C.  C.  27;  R.  r.  Gibney,  Jebb,  C.  C.  15,  17,  18,  20; 
R.  V.  Magill,  cited  in  McNally,  Ev.  38;  R.  v.  Long,  6  C.  &  P.  179,  perGurney, 
B.;  Joy  on  Conf.  45—48;  R.  v.  Lavin,  Jr.  Cir.  R.  813,  per  Perrin,  J. 

*  R.  v.  Green,  5  C.  &  P.  312,  per  Gurney,  B.;  R.  v.  Arnold,  8  C.  &  P.  622, 
per  Ld.  Denman;  R.  v.  O'Reilly,  Ir.  Cir.  R.  718,  per  Ball,  J. 

5  Ante,  ?  878. 

«  R.  V.  Clewes,  4  C.  &  P.  423,  per  Littledale,  J. ;  R.  v.  Swatkins,  id.  550,  per 
Patteson,  J.;  R.  r.  Gibney,  Jebb,  C.  C.  15;  R.  v.  Courtney,  2  Crawf.  &  D.,  C. 
C.  63,  per  Ball,  J. ;  Joy  on  Conf.  59—61. 

(3625) 


758  WHAT  AMOUNTS  TO  A  PROMISE  OR  THREAT.  [PAET  11. 

was  made,  either  had  the  prisoner  in  custody,  or  held  any  conver- 
sation with  him."  Notwithstanding  the  law  is  as  above  stated, 
many  justices  of  the  peace,  both  in  England  and  Ireland,  are  in 
the  habit  of  dissuading  the  culprit,  with  more  or  less  earnest- 
ness, from  disclosing  any  fact  which  may  tend  to  establish  his 
guilt.  This  practice,  which  is  rather  to  be  admired  for  romantic 
generosity  than  for  wisdom,  or  for  any  beneficial  consequences  result- 
ing therefrom  to  the  public,"  has  been  very  properly  condemned  by 
several  able  judges,  as  an  absurd  and  improper  mode  of  shutting  up 
one  of  the  most  valuable  sources  of  justice  and  truth.^ 

§  883.*  It  has  been  thought  that  illegal  imprisonment  is  calcu-  §  806 
lated  to  exert  such  influence  upon  the  mind  of  the  prisoner,  as  to 
justify  the  inference  that  his  confessions  made  during  its  con- 
tinuance were  not  voluntary,  and  on  one  occasion,  they  appear  on 
this  ground  to  have  been  rejected.^  But  this  doctrine  cannot  yet 
be  considered  as  satisfactorily  established.'^ 

§  884.  From  the  preceding  observations  and  cases,  it  is  clear  ?  807 
that  a  confession,  to  be  inadmissible,  must  have  been  made  in 
consequence  of  some  inducement  or  threat,  which,  being  held  out 
or  sanctioned  by  a  person  in  authority,  related  to  the  prisoner's 
escape  from  the  charge  against  him.  Still,  the  question  remains, 
what  language  is  sufficient  to  constitute  such  inducement  or 
threat;  and  here  the  reported  decisions  certainly  furnish  a  very 
unsatisfactory  guide.  Some  reason  may  be  given  for  applying 
the  rule  to  such  words  as  these: — "Unless 'you  give  me  a  more 
satisfactory  account,  I  will  take  you  before  a  magistrate;"*  "If 

'  See  cases  cited  in  last  note.  ^  Edinb.  Rev.,  March.  1824. 

3  R.  V.  Green,  2  C.  &  P.  312,  per  Gurney,  B. ;  R.  v.  Arnold,  8  C.  &  P.  622, 
per  Ld.  Denman.  In  R.  v.  Cart,  Maidstone  Sum.  Ass.  1838,  MS.,  Ld.  Denman 
observed  to  some  constables,  who  were  called  as  witne.sses  : — "  The  distinction 
is  very  clear;  you  are  not  to  suppress  the  truth,  but  you  are  not  to  take  any 
measures  of  your  own  to  endeavour  to  extort  it." 

*  Gr.  Ev.  ?  2.30,  almost  verbatim. 

^  R.  V.  Ackroyd,  1  Lew.  C.  C.  49,  per  Holroyd,  J. 

«  R.  V.  Thornton,  1  Moo.  C.  C.  27;  1  Lew.  C.  C.  49,  S.  C. 

^  Gr.  Ev.  ?  220,  in  part. 

8  R.  V.  Thompson,  1  Lea.  291,  per  Hotham,  B. ;  R.  v.  Luckhurst,  Pearoe 
&  D.    245;  R.   v.    Richards,    5  C.   &  P.  318,  per  Bosanquet,   J.;  S.  C.  cited 

(3626) 


CHAP.   XV.  j        WHAT  AMOUNTS  TO  A  PROMISE  OR  THREAT.  759 

you  will  tell  me  where  my  goods  are,  I  will  be  favourable  to  you; "  ' 
"  I  only  want  my  money,  and  if  you  give  me  that,  you  may  go  to 
the  devil; "  "  "  If  you  will  not  tell  all  you  know  about  it,  of  course 
we  can  do  nothing;  "  ^  "You  are  under  suspicion  of  this,  and  you 
had  better  tell  all  you  know;  "  *  "  The  watch  has  been  found,  and 
if  you  do  not  tell  me  who  your  partner  was,  I  will  commit  you  to 
prison;  "  '^  "  You  had  better  split,  and  not  suffer  for  all  of  them."  * 
But  when  confessions  have  been  rejected  in  consequence  of  such 
expressions  as  the  following  having  been  used:  -— "  It  will  be  better 
for  you  to  speak  the  truth;''''  "The  inspector  tells  me  you  make 
housebreaking  tools;  if  so,  you  had  better  tell  the  truth,  it  will  be 
better  for  you."**  "It  is  of  no  use  for  you  to  deny  it,  for  there 
are  the  man  and  boy  who  will  -swear  they  saw  you  do  it;"^ 
"  Now,  be  cautious  in  the  answers  you  give  me  to  the  questions 
I  am  going  to  put  to  you  about  this  watch  ; " '"  "  Whatever 
you  say  will  be  taken  down  and  used  against  you;  "  '^  "  Do  not 
say  anything  to  prejudice  yourself,  as  what  you  say  I  shall  take 
down,  and  it  will  be  used  for  you  or  against  you  at  your  trial  ; "  '^ 
"  What  you  are  charged  with  is  a  very  heavy  offence,  and  you  must 
be  very  careful  in  making  any  statement  to  me,  or  anybody  else, 
that  may  tend  to  injure  you;  but  anything  you  can  say  in  your 
defence,  we  shall  be  ready  to  hear,  or  send  to  assist  you  ;  "  ''^ — in 

as  R.  V.  Griffiths,  2  Russ.  C.  &  M.  832;  R.  v.  Walsh,  Ir.  Cir.  R.  866,  per 
Jackson,  J. 

1  R.  V.  Cass,    1   Lea.    293,   n.    «,   per    Gould,   J.  ;    Boyd  v.  The  State,  2 
Humph.  37. 

2  R.  V.  Jones,  R.  &  R.  152. 

^  R.  V.  Partridge,  7  C.  &  P.  551,  per  Patteson,  J.    See,  also.  Guild's  case,  5 
Halst.  163. 

*  R.  V.  Kingston,  4    C.  &    P.  387,  per    Parke    and    Littledale,  Js. ;    R.  v. 
Cheverton,  2  Post.  &  Fin.  833,  per  Erie,  C.  J. 

*  R.   V.  Parratt,  4  C.  &  P.   570,  per  Alderson,  J.;  R.  v.  Upchurch,  1  Moo. 
C.  C.  465. 

8  R.  v.  Thomas,  6  C.  &  P.  353,  per  Patteson,  J. 

^  R.  V.  Garner,  2  C.  &  Kir.  920;  3  Sess.  Cas.  329;  1  Den.  329,  S.  C. 

8  R.  V.  Fennell,  L.  R.,  7  Q.  B.  D.  147;   50  L.  J.,  M.  C.  126;  and  14  Cox, 
607,  S.  C.     See  R.  v.  Mansfield,  14  Cox,  639. 

9  R.  V.  Mills  6  C.  &  P.  146,  per  Gnrney,  B. 
1"  R.  V.  Fleming,  1  Arm.  M.  &  O.  330. 

"  R.  V.  Harris,  1  Cox,  106,  per  Maule,  J. 
'2  R.  V.  Drew,  8  C.  &  P.  140,  per  Coleridge,  J. 

"  R,  V.  Morton,  2  M.  &  Rob.  514,  per  id.  .^     . 

(3627) 


7G0  WHAT  AMOUNTS  TO  A  PROMISE  OR  THREAT.  [PART  11. 

tbese,  and  the  like  cases,  it  is  only  too  apparent,  that  justice  and 
common  sense  have  been  sacrificed  on  the  shrine  of  mercy.  Indeed, 
the  judges  themselves  have  of  late  years  come  to  this  conclusion,' 
and  after  a  solemn  discussion  of  the  subject  in  the  Court  of 
Criminal  Appeal,  they  have  expressly  overruled  the  last  three 
decisions  cited  above,  as  cases  which  are  discreditable  to  the  law.^ 
So  anxious  was  the  court  at  one  time  to  exclude  evidence  of  confes- 
sions, that  exhortations  not  to  tell  lies,  but  to  spea/c  the  truth, 
have  been  deemed  likely  to  induce  a  false  acknowledgment  of  guilt; 
and,  consequently,  admissions  made  after  such  exhortations  have 
more  than  once  been  rejected.^  But  this  parodoxical  opinion  is 
now  happily  exploded.* 

§  885.  Where  the  inducement  relates  to  the  charge  against  the^  §  808 
prisoner,  and  comes  from  a  person  in  authority,  it  is  not  necessary 
that  it  should  be  directly  held  out  to  the  prisoner  himself;  but  it 
will  equally  have  the  effect  of  excluding  his  confession,  if  there  be 
good  reason  to  believe  that  it  has  come  to  his  knowledge,  and  has 
influenced  his  conduct  Thus,  where  a  superior  clerk  in  the  post- 
office  said  to  the  wife  of  a  postman,  who  was  in  custody  for  opening 
and  detaining  a  letter,  "Do  not  be  frightened;  I  hope  nothing 
will  happen  to  your  husband  beyond  the  loss  of  his  situation;" 
the  prisoner's  subsequent  confession  was  rejected,  it  appearing  that 
the  wife  might  have  communicated  to  him  the  substance  of  this 
statement.^     So,  where  in  a  case  of  murder.  Government  had  pub- 

^  See  K.  V.  Reason,  12  Cox,  228,  per  Keating,  J.;  R.  v.  Jones,  id.  241. 

2  R.  V.  Baklry,  2  Den.  430.  There,  a  policeman,  who  had  a  prisoner  in 
custody  on  a  charge  of  felony,  said  to  him,  "Yon  need  not  say  anything  to 
criminate  yourself ;  what  you  say  will  be  taken  down  and  used  as  evidence 
against  you."  The  court  held  that  a  confession  subsequently  made  was  ad- 
missible. Notwithstanding  this  decision,  some  of  the  Irish  Judges  appear  to 
be  still  inclined  to  follow  the  former  mala  j>ra.r/s.  R.  v.  Toole,  7  Cox,  244, 
sed  (ju. 

•'  R.  v.  Shepherd,  7  C.  &  P.  579,  per  Gaselee,  J. ;  R.  v.  Enoch,  5  C.  &  P. 
539,  per  Park,  J.  ;  R.  v.  Wood,  Jr.  Cir.  R.  597,  per  Crampton,  J.;  R.  v. 
Laugher,  2  C.  &  Kir.  225,  per  Pollock,  C.  B. ;  R.  v.  Bate,  11  Cox,  68G,  per 
Montague  Smith,  J. 

*  R.  V.  Reeve,  1  Law  Rep.,  C.  C.  362;  41  L.  J.,  M.  C.  92;  12  Cox,  179, 
S  C;  R.  V.  Holmes.  1  C.  &  Kir.  218,  per  Rolfe,  B. ;  R.  v.  Court,  7  C.  &  P. 
486,  per  Littledale,  J.;  R.  v.  Harris,  1  Moo.  C.  C.  341;  R.  v.  Baldry,  2  Den. 
430,  442,  R.  V.  Jarvi.s,  1  Law  Rep.,  C.  C.  96;  37  L.  J.,  M.  C.  1,  S.  C. 

^  R.  V.  Harding,  1  Arm.  M.  &  O.  340. 

(3628) 


CHAP.  XV.]  OLD  PRACTICE  OF  TORTURE.  761 

lished  a  handbill,  offering  pardon  to  any  one  of  the  offenders,  except 
the  person  who  struck  the  blow,  who  should  give  such  information 
as  would  lead  to  the  conviction  of  his  accoruplices;  and  it  appeared 
that  the  prisoner  was  aware  of  this  offer,  and  was  induced  by  it  to 
make  a  confession,  the  court  held  that  what  he  said  could  not  be 
given  in  evidence.' 

§  886.''  The  rule  that  the  confession  must  be  voluntary,  is  §  809 
equally  applicable  to  cases  where  the  prisoner  has  made  a  statement 
during  the  preliminary  inquiry  before  the  magistrate.  The  practice 
of  subjecting  the  accused  to  a  compulsory  examination,  and  even  of 
putting  him  to  the  torture,  was  familiar  to  the  Roman  law,'  and 
both  these  modes  of  proceeding  were  legal  in  Scotland  so  la£e  as  the 
reign  of  Queen  Anne.^  In  England,  too,  down  to  the  reign  of 
Charles  the  First,  the  rack  was  occasionally  employed  as  an  apt 
engine  for  wringing  truth  fi-om  the  victims  of  the  Star  Chamber 
and  the  High  Commission  Court; '^  and  even  Lord  Coke,  till  he 
became  a  patriot,  and  saw  political  offences  with  the  eyes  of  a  leader 
of  the  Opposition,  was  prepared  to  wink  at,  if  not  to  justify,  its 
use;**  while  Lord  Bacon,  to  his  eternal  infamy,  did  not  hesitate,  as 
Attorney- General,  to  superintend,  in  person,  the  torture  of  an  aged 
clergyman.'  However,  in  the  year  1628,  on  the  trial  of  Felton  for 
the  murder  of  the  Duke  of  Buckingham, — the  evidence  being  amply 
sufficient  to  ensure  a  conviction  without  the  use  of  torture,  and  the 
prisoner  threatening,  that  were  he  put  to  the  rack,  he  might  pos- 
sibly accuse  Bishop  Laud,  or  some  other  of  the  lords  of  the  council 
as  being  accessories  to  the  fact, — the  judges  came  to  an  unanimous 


1  E.   V.   Bos\Yell,   C.  &   Marsh.   584,   per   Cresswell,  J.     See   E.  v.  Dingley, 

1  C.  &  Kir.  637;  and  E.  v.  Blackburn,  6  Cox,  333. 
'^  Gr.  Ev.  I  224,  in  part  as  to  first  six  lines. 

*  See  B.  Carpz.  Pract.  Eer.  Cri.,  Pars  iii.,  Quajst.  113,  per  tot. 

"  The  Act  of  7  A.,  c.  21,  s.  5,  abolished  the  use  of  torture  in  Scotland.     See 

2  ISI'Douall,  Inst.  660.  For  instances  of  the  application  of  torture  beyond 
the  Tweed,  see  6  How.  St.  Tr.  1217—1222,  and  10  id.  687,  691,  726—747, 
751— 7.")8. 

^  Campion's  case,  cited  by  Weston,  B.,  in  E.  i'.  Cellier,  7  How.  St.  Tr.  1205; 
Peacham's  case,  2  How.  St.  Tr.  871. 

"  See  Lady  Shrewsbury's  case,  2  How.  St.  Tr.  773,  774,  n.  n. 

'  Peacham's  case,  2   How.  St.  Tr.  870,  871,  876.     See  the  masterly  Life  of 
Ld.  Bacon,  in  Ld.  Cami^bell's  Lives  of  the  Chanc,  2nd  vol.,  339 — 341. 

(3629) 


762  ALL  CONFESSIONS  MUST  NOW  BE  VOLUNTARY.  [PAET  II. 

opinion,  that  "  no  such  punishment  as  torture  by  the  rack  was 
known  or  allowed  by  our  law;"  '  and  since  that  decision  no  attempt 
has  been  made  to  revive  this  atrocious  practice.- 


§  887.  Though  torture  was  thus  formally  abolished  before  the  §  810 
middle  of  the  seventeenth  century,  it  was  not  till  after  the  lapse  of 
many  years  that  the  common  law  doctrine,  nemo  tenetur  prodere 
seipsum,  was  fully  recognised,  or  at  least  was  interpreted  to  mean, — - 
as  it  does  in  the  present  day, — that  all  confessions  should  be  strictlj' 
voluntary ;  for  no  man  can  read  the  cases  reported  among  the  State 
trials,  without  observing,  that,  up  to  a  comparatively  modern  date, 
persons  accused  of  flagrant  or  political  offences  were  earnestly 
pressed,  in  their  preliminary  examinations,  to  acknowledge  their 
guilt;  while,  at  their  trial,  recourse  was  frequently  had  to  every 
artifice  of  cross-examination,  in  order  to  entrap  them  into  a  con- 
fession, or  to  detect  some  falsehood  or  inconsistency  in  the  state- 
ments which  they  had  made  in  support  of  their  innocence.  This 
practice,  which  still  continues  in  France,^  and  in  other  countries  on 
the  continent  of  Europe,  and  which  certainly  is  no  mean  instru- 
ment for  the  discovery  of  truth,  has  been  regarded  both  in  this 
country  and  in  America,  during  the  last  century,  as  savouring  of 
unfairness  and  oppression,  and  has  consequently  been  discontinued; 
and,  though  assuredly  few  Englishmen  would  wish  to  see  this  mode 
of  proceeding  re-established  in  all  its  harshness  and  vigour  in  our 
criminal  courts,  most  sensible  men  will  probably  now  consider  that 
false  sentiments  of  humanity  and  fair  dealing  have  been  caiTied 
much  too  far  in  an  opposite  direction. 


The  first  Acts  which  regulated  the  examination  of  pri-    |  811 
soners  before  the  magistrates,  were  passed  in  the  reign  of  Queen 
Mary ;  *  and    these    statutes,  the  principles   of    which    have   been 

'  R.  V.  Felton,  3  How.  St.  Tr.  371. 

2  In  R.  V.  Cellier,  7  How.  St.  Tr.  1205,  Weston,  B.,  told  the  jury,  that  no 
person  had  suffered  torture  in  England  since  Campion  the  Jesuit,  who  was  put 
to  the  rack  in  the  20th  year  of  the  reign  of  Queen  Elizabeth.  But  this  is  a 
strange  mistake. 

^  See  Comments  on  the  case  of  the  Due  de  Prasliu,  in  7  Law  Rev.  Art.  vii. 

*  1  &  2  Ph.  &  M.,  c.  13;  2  &  3  Ph.  &  M.,  c.  10;  extended  to  Ireland  by  10 
C.  1,  c.  18. 

(3630) 


CHAP.  XV.]  EXAMINATION  OF  PRISONER  BY  MAGISTRATE.  763 

adopted  in  several  of  the  United  States,'  were  followed  in  England 
by  the  Act  of  7  G.  4,  c.  64,  and  in  Ireland  by  the  corresponding 
Act  of  9  G.  4,  c.  54.  The  statutes,  however,  which  now  define  the 
course  of  practice  in  either  country  are  11  &  12  V.,  c.  42,  and  14 
&  15  v.,  c.    93.'     The  first  of    these  two  Acts,  which  applies  to 

1  See  N.  York  Cr.  Code,  Part  4,  tit.  3,  c.  7,  §§  195—199;  Bellinger's  case, 
8  Wend.  595,  599;  Elmer's  Laws  of  New  Jersey,  p.  450,  ^  6;  Laws  of 
Alabama  (Toulmin's  Dig.),  tit.  17,  ch.  3,  §  2,  p.  219;  Laws  of  Tennessee  (Car- 
ruthers  and  Nicholson's  Dig.),  p.  426;  N.  Carolina  Rev.  Stat.,  ch.  35,  g  1; 
Laws  of  Mississippi  (Aklen  and  Von  Hoesen's  Dig.),  c.  70,  §  5,  p.  532;  Laws 
of  Delaware  (Rev.  Code  of  1829),  p.  G3;  Brevard's  Laws  of  S.  Carolina,  vol.  1., 
p.  460;  Laws  of  Missouri  (Revision  of  1835),  p.  476;  Laws  of  Jlichigau 
Territory,  p.  215.  See,  also,  Massach.  Rev.  Stat.,  ch.  85,  I  25 ;  Resp.  v. 
McCarty,  2  Dall.  87,  per  M'Kean,  C.  J. 

^14&15  V.,c.  93,  relates  to  Ireland,  and  enacts,  in  §  14,  clause  2,  that, 
"  Whenever  the  examination  of  the  witnesses  on  the  part  of  the  prosecution 
shall  have  been  completed,  the  justice  or  one  of  the  justices  present  shall, 
without  requiring  the  attendance  of  the  witnesses,  read  or  cause  to  be  read  to 
the  person  accused  the  several  depositions,  and  then  take  down  in  writing  the 
statement  (Ac.)  of  such  person,  having  first  cautioned  him  that  he  is  not 
obliged  to  say  anything  unless  he  desires  to  do  so,  but  that  whatever  he  does 
say  will  be  taken  down  in  Avriting,  and  may  be  given  in  evidence  against  him 
on  his  trial ;  and  whatever  statements  the  said  person  shall  then  malvc  in  answer 
to  the  charge  shall,  when  taken  down  in  w^riting,  be  read  over  to  him,  and 
shall  be  signed  by  the  said  justice  or  one  of  the  justices  present,  and  shall  be 
transmitted  to  the  clerk  of  the  Crown  or  peace,  as  the  case  may  be,  along  with 
the  depositions,  and  afterwards,  upon  the  trial,  may,  if  necessary,  and  if  so 
signed,  be  given  in  evidence  against  the  person  accused,  without  further  proof 
thereof,  unless  it  shall  be  proved  that  it  was  not  signed  by  the  justice  pur- 
porting to  sign  the  same;  but  nothing  herein  contained  shall  prevent  the 
prosecutor  from  giving  in  evidence  any  admission  or  confession,  or  other  state- 
ment made  at  any  time  by  the  person  accused,  and  which  would  be  admissible 
by  law  as  evidence  against  such  person." 

"The  Form  given  in  Sch.  Ac.  is'as  follows: — 

Complainant.     (  Petty  Sessions,  district  of 

Defendant.  1  County  of 
A  charge  having  been  made  against  C.  D.  before  the  undersigned  justice  that 
[^cameof  complaint,  with  time  and  place]  ;  and  the  said  charge  having  been  read 
to  the  said  C.  D.,  and  the  witnesses  for  the  prosecution  having  been  severally 
examined  in  his  presence,  and  the  said  C.  D.  having  been  first  duly  cautioned 
that  he  was  not  obliged  to  .say  anything,  but  that  whatever  he  did  say  might  be 
given  in  evidence  against  him  upon  his  trial,  saith  as  follows:  Is'iatement  of 
prisoner  in  his  very  ivords,  or  as  nearly  so  as  possible,  and  to  he  signed  by  him, 
if  he  «'///]. 

"  Taken  before  me  this  day  of  in  the  year 

eighteen  hundred  and  ,  at  in  said 

county. 

"  Signed  Justice  of  said  county." 

(3631) 


704  i:.\AMINATIOX  OF  PRISONER  DY  M.\G]ST?tATi:.       [I'AI.T  II. 

England,  enacts,  in  §  18,  that  "  after  the  examinations  of  all  the 
witnesses  on  the  part  of  the  prosecxition  as  aforesaid  shall  have  been 
completed,  the  justice  of  the  peace,  or  one  of  the  justices,  by  or 
before  whom  such  examination  shall  have  been  so  completed  as 
aforesaid,  shall,  without  requiring  the  attendance  of  the  witnesses, 
read,  or  cause  to  be  read,  to  the  accused  the  depositions  taken 
against  him,  and  shall  say  to  him  these  words,  or  words  to  the  like 
effect: — 'Having  heard  the  evidence,  do  you  wish  to  say  anything 
in  answer  to  the  charge?  You  are  not  obliged  to  say  anything 
unless  you  desire  to  do  so,  but  whatever  you  may  say  will  be  taken 
down  in  wi'iting,  and  may  be  given  in  evidence  against  you  upon 
your  trial;'  and  whatever  the  prisoner  shall  then  say  in  answer 
thereto  shall  be  taken  down  in  writing,^  and  read  over  to  him,  and 
shall  be  signed  by  the  said  justice  or  justices,  and  be  kept  with  the 
depositions  of  the  witnesses,  and  shall  be  transmitted  with  them  as 
hereinafter  mentioned;"  that  is,  "the  statement  of  the  accused" 
shall,  together  with  the  other  documents  in  the  case,  "  be  delivered 
by  the  said  justice  or  justices,  or  he  or  they  shall  cause  the  same 
to  be  delivered,  to  the  proper  officer  of  the  court  in  which  the  trial 
is  to  be  had,  before  or  at  the  opening  of  the  said  court  on  the  first 
day  of  the  sitting  thereof,  or  at  such  other  time  as  the  judge,  re- 
corder, or  justice,  who  is  to  preside  in  such  court  at  the  said  trial. 


'  The  Form  given  in  Sched.  N  to  the  Act  is  as  follows: — 

■:  A.  B.  stands  charged  before  the  undersigned   [one]  of   her  Majesty's 


Justices  of  the  Peace  in  and  for  the  [couniy]  aforesaid,  this  day  of 

in  the  year  of  our  Lord  ,  for  that  he  the  said 

A.  B.,  on  at  [&c.,  as  in  the  caption  of  the  depositions]  ; 

and  the  said  charge  being  read  to  the  said  A.  B.,  and  the  witnesses  for  the 
prosecution,  C.  D.  &  E.  F.,  being  severally  examined  in  his  presence,  the 
said  A.  B.  is  now  addressed  by  me  as  follows:  '  Having  heard  the  evidence,  do 
you  wish  to  say  anything  in  answer  to  the  charge?  You  are  not  obliged  to 
say  anything  unless  you  desire  to  do  so;  but  Avhatever  you  say  will  be  taken 
down  in  writing,  and  may  be  given  in  evidence  against  you  upon  your  trial;  ' 
whereupon  the  said  A.  B.  saith  as  follows  : 

[Here  state  ichatever  the  prisoner  may  say,  and  in  his   very  icords,  as   nearly 
as  possible.     Get  him  to  sign  it  if  he  will.} 

"A.  B. 
"  Taken  before  me  at  the  day  and  year  first 

above  mentioned. 

"S.  L." 
This  form  is  legalised  by  §  28  of  the  Act,  but  is  not  rendered  necessary. 

(3632) 


CHAP.    XV.]        EXAMINATION    OF    PRISONER    BY    MAGISTRATE.  765 

shall  order  and  appoiut;"'  "and  afterwards,  upon  the  trial  of  the 
said  accused  person,  the  same  may,  if  necessary,  be  given  in  evi- 
dence against  him,  without  further  proof  thereof ,  unless  it  shall  be 
proved  that  the  justice  or  justices  purporting  to  sign  the  same  did 
not  in  fact  sign  the  same  :  Provided  always,  that  the  said  justice  or 
justices,  before  such  accused  person  shall  make  any  statement, 
shall  state  to  him,  and  give  him  clearly  to  understand  that  he  has 
nothing  to  hojDe  from  any  promise  of  favour  and  nothing  to  fear 
from  any  threat,  which  may  have  been  holden  out  to  him  to  induce 
him  to  make  any  admission  or  confession  of  his  guilt,  but  that 
whatever  he  shall  then  say  may  be  given  in  evidence  against  him  on 
his  trial,  notwithstanding  such  promise  or  threat  :  Prpvided,  never- 
theless, that  nothing  herein  enacted  or  contained  shall  prevent  the 
prosecutor  in  any  case  from  giving  in  evidence  any  admission  or 
confession,  or  other  statement  of  the  person  accused  or  charged, 
made  at  any  time,  which  by  law  would  be  admissible  as  evidence 
against  such  person."  ^ 

§  889.  If  the  above  clause  be  read  in  connexion  with  the  Form  §  812 
given  in  the  schedule  to  the  Act,^  it  would  seem  that,  in  order  to 
render  a  prisoner's  statement  strictly  valid  as  a  statutory  confes- 
sion, the  following  cix'cumstances  must  all  have  occurred.  The 
charge  must  have  been  read  to  the  accused;*  all  the  witnesses 
must  have  been  examined  in  his  presence,^  and  the  depositions 
read  to  him  after  the  examinations  were  completed;*^  he  must 
then,  and  not  till  then,  be  twice  cautioned  by  the  justice;  first, 
generally,"  and,  secondly,  as  to  the  inefficiency  of  any  promises  or 
threats  which  may  have  been  formerly  held  out  to  him;  '^  his  whole 
statement  must  next  betaken  down  in  his  own  words ;  ^  it  must 


M  20.  2  g  18. 

^  Cited  in  last  page,  n.  1.  *  See  Sch. 

5  See  Sch.,  and  |  17  of  the  Act,  cited  ante,  §  479.  "  See  |  18. 

'  See  §  18.     As  to  the  old  law,  see  E.  v.  Green,  5  C.  &  P.  312  ;  R.  v.  Arnold, 
8  id.  621. 

^  See  first  proviso  in   g   18.     This  is  quite  new,  and  is  an  unique  specimen 
of  absurd  legislation. 

^  See    Sch. ;    and   E.  v.  Eoche,  C.  &   Marsh.  341  ;    E.  v.  Sexton,  «&   E.  v. 
Mallett,  cited  2  Euss.  C.  &  M.  867. 

(3633) 


766  EXAMINATION    OF    PRISONER    BY    MAGISTRATE.      [pART   II. 

then  be  read  to  him,'  and  he  must  be  pressed  for  his  signature/ 
though  the  Act  is  silent  as  to  the  effect  of  his  refusing  to  sign  it, 
or  even  to  admit  its  correctness;  the  justice  must  also  sign'  the 
statement;^  and  this  being  done,  it  must  be  kept  with  the  depo- 
sitions, and  be  transmitted,  together  with  them  and  certain  other 
documents,  to  the  court  -where  the  trial  is  to  be  had,  on  or  before 
the  opening  of  such  court.* 

§  890.  Notwithstanding  these  minute  directions,  it  is  not  easy  §  813 
to  see  how  the  prisoner  on  his  trial  could  avail  himself  of  any 
neglect  of  them  on  the  part  of  the  justice,  whether  intentional 
or  otherwise;  for  the  statement  transmitted,  if  headed  in  the 
manner  pointed  out  by  the  schedule,  is  made  evidence  against 
the  prisoner  on  its  mei'e  production,  and  without  any  proof  of 
the  mode  in  which  it  was  taken  down,  unless  it  can  be  shown 
that  the  signature  of  the  justice  is  a  forgery.  \A'hether  this  was 
the  intention  of  the  Legislature  may,  perhaps,  be  doubted  ;  but 
such  is  the  apparent  effect  of  the  language  employed.  It  is  also 
clear,  from  the  last  proviso  which  is  appended  to  the  18th  section 
of  the  Act,  that  any  statement  made  by  the  prisoner  in  the  magis- 
trate's presence,  before  the  examinations  of  the  witnesses  for  the 
prosecution  are  all  completed,  may  be  proved  by  parol  evidence, 
and  will  be  admissible  against  him,  even  though  no  caution  has 
been  previously  given.^ 

§  891.  The  judges,  as  might  have  been  expected,  have  felt  ?  814 
much  embarrassment  in  putting  a  sensible  interpretation  on  these 
ill  drawn  provisions;  and  the  cases,  as  i-eported  on  the  subject, 
are  extremely  unsatisfactory.  In  one,'^  IVIr.  Baron  Alderson  is 
made  to  entertain  much  doubt  whether,  in  spite  of  the  general 
language  of  the  Act,  it  was  not  necessary  to  prove  by   independent 


'  See  ?  18  ;  and  2  Riiss.  C.  &  M.  881,  882. 

2  SeeSch.;  and  2  Russ.  C.  &  M.  881,  882;  R.  v.  Lambe,  2  Lea.  552;  R. 
r.  Thomas,  id.  637  ;  R.  v.  Foster,  1  Lew.  C.  C.  46  ;  R.  v.  Hirst,  id. ;  R.  v. 
Zelicote,  2  Stark.  R..483  ;  R.  v.  Pressly,  3  C.  &  P.  183.  ^  See  §  18;  and  R.  v. 
Torrant,  6  C.  &  P.  182.  *  See  §§  18  &  20. 

*  See  post,  p.  769,  n.  10,  and,  also,  R.  v.  Stripp,  7  Cox,  97  ;  Pearce  &  D.  648, 
S.  C.  6  II  ^  Higson,  2  C.  &  Kir.  769. 

(3634) 


CHAP.  XV.]  PROOF  OF  PRISONER'S  EXAMINATION.  767 

evidence  that  the  accused  had  been  duly  cautioned  by  the  magis- 
trate, although  the  caption  of  the  examination  contained  a  positive 
declaration  to  that  effect.  In  another,'  Mr.  Justice  Coleridge, 
after  consulting  Cresswell,  J.,  is  said  to  have  expressed  an  opinion, 
that  the  first  proviso  in  §  18  of  the  Act,  which  relates  to  the 
special  caution  to  be  given  to  the  accused  for  the  purpose  of 
removing  the  effect  of  any  previous  threat  or  inducement,  was  a 
condition  precedent,  and  that,  in  the  absence  of  any  proof  that  it 
had  been  acted  upon,  the  statement  of  the  prisoner  was  inadmis- 
sible. These  dicta,  however,  appear  to  be  wholly  unfounded; 
and  if  the  case  of  R.  v.  Sansome  be  correctly  given  in  Mr.  Cox's 
Criminal  Law  Cases,^  they  have  been  overruled.  According  to 
this  reporter,  the  judges  expressly  determined  in  that  case,  that 
when  an  examination  was  transmitted  by  the  committing  magis- 
trate in  the  statutory  form,  it  became  admissible  without  further 
proof;  ^  and  Mr.  Baron  Parke  went  so  far  as  to  assert  that,  in  his 
judgment,  it  would  be  receivable  in  evidence,  though  neither  of 
the  cautions  was  stated  to  have  been  given.  Too  much  reliance, 
however,  should  not  be  placed  on  this  last  dictum:  and  until  the 
law  is  more  clearly  defined  by  judicial  construction,  it  certainly 
will  be  prudent  for  committing  magistrates  not  only  to  adopt  the 
form  set  out  in  the  schedule  to  the  Act,  but  to  give  the  prisoner 
in  all  cases  the  second  caution  as  well  as  the  first.* 


§  892.  Although  a  written  examination,  if  it  purport  to  be  taken  §  815 
in  conformity  with  the  Act,  and  to  be  signed  by  the  committing 
magistrate,  is  in  strictness  admissible  without  proof,  it  may  still 
be  advisable  in  serious  cases,  as  a  matter  of  caution,  to  call  either 
the  justice  or  the  clerk,  so  that  it  may  clearly  appear  that  the 
proceedings  have  been  conducted  in  the  proper  manner.'^  Indeed, 
this  course  may  become  necessary,  if  the  document  has  not  been 
drawn  out    in  the  form  given   in   the  schedule,  or  if  it  contains 


'  R.  V.  Kimber,  3  Cox,  223. 

'•'  4  Cox,  203,  207.     See  S.  C.  as  reported  in  3  C.  &  Kir.  332. 

^  In  1  Den.  54.5,  where  the  sa7ue  case  is  reported,  the  above  ruling  will  not 
be  found;  and  this  is  the  more  remarkable  as  Mr.  Dension  was  himself  counsel 
in  the  cause.  *  R.  v.  Sansome,  1  Den.  545. 

*  See  R.  V.  Pikesley,  9  C.  &  P.  124;  R.  v.  Wilshaw,  C.  &  Marsh.  145. 

(3635) 


7CS  PROOF  OF  prisoner's  examination,  [part  II. 

erasures  or  interlineations  which  require  explanation/  If,  too, 
the  prisoner  has  not  signed  his  name  or  mark  to  the  paper, 
some  witness,  who  was  present  at  the  inquiry,  should,  in  prudence, 
be  forthcoming  to  speak  to  its  identity,  and  to  prove  that  it  was 
read  over  to  the  accused,  and  assented  to  by  him.^  It  would 
seem  to  be  further  necessary  to  the  validity  of  an  examination  as 
evidence  per  se,  that  it  should  appear  on  the  face  of  the  document 
that  it  was  taken  while  the  prisoner  was  under  examination  on  a 
charge  of  felony  or  misdemeanor,  or  of  suspicion  of  one  of  those 
crimes,  and  that  the  justices  signing  it  were  acting  as  justices 
pursuant  to  statute.'^  AVhether  these  facts  must  appear  by  a 
separate  caption  is  a  point  which  is  not  yet  determined.  The 
form  in  the  schedule  gives  a  separate  caption,  but  that  form, 
though  legalised,  is  not  rendered  necessary  by  the  Act;*  and 
under  the  old  law,  provided  the  examination  was  written  on  the 
same  paper  as  the  depositions,  the  heading  at  the  commencement 
was  held  to  apply  to  all  the  statements  contained  in  the  docu- 
ment.^ In  this  respect  the  rule  agreed  with  that  which  governs 
examinations  taken  under  the  Poor  Law  Acts;  for  it  is  not  neces- 
sary,— as  was  once  supposed,*^ — that  such  examinations  should  have 
distinct  captions,  but  it  will  suffice  to  state  in  the  first  caption  the 
names  of  all  the  witnesses.' 

§  893.  As  the  admissibility  of  statutory  examinations  without 
proof  rests  on  the  presumption  that  the  justices  have  done  their 
duty,  it  seems  to  follow  that  no  evidence  can  be  received  tending 
to  contradict  or  vary  the  statements  contained  in  the  documents 
as  returned.  This  was  the  law  before  the  Act  under  discussion  was 
passed,^  and  that  Act  does  not  appear  to  have  introduced  any  change  in 


•  See  R.  V.  Brogan,  cited  2  Enss.  C.  &  M.  887;  R.  v.  Dwjers,  id.  n.  p. 

'  See  R.  V.  Reading,  7  C.  &  P.  649;  R.  r.  Hearn,  C.  &  Marsh.  109;  R.  v. 
Hopes,  7  C.  &  P.  136;  1  M.  &  Rob.  396,  u.,  S.  C;  R.  v.  Haines,  2  Russ. 
C.  &  M.  886. 

3  See  R.  r.  Tarrant,  6  C.  &  P.  182.  *  ?  28  of  the  Act. 

^  R.  V.  Johnson,  2  C.  &  Kir.  355,  per  Alderson,  B. ;  R.  r.  Young,  3  id.  106. 

8  R.  V.  Ratclifife  Culey,  2  Sess.  Cas.  352. 

T  R.  V.  St.  Michael's,  Coventry,  12  Q.  B.  96;  3  Sess.  Cas.  260,  S.  C. 

«  R.  f.  Walter,  7  C.  &  P.  267;  R.  v.  J^Iorse,  8  C.  &  P.  605. 

(3636) 


CHAP.  XV.]        PRISOXER's  TXAMINATION' — PAROL  EVIDENCE.  T0& 

the  practice.'  Whether  this  presumption  is  of  eo  conclusive  a 
character  as  to  exclude  all  parol  evidence,  which  is  tendered  with 
the  view  of  adding  to  the  written  examination,  is  a  question  of 
doubt  and  difficulty;  but  as  the  Act  renders  it  incumbent  on  the 
justice,  not  only  to  reduce  to  writing  so  much  of  the  prisoner's 
examination  as  may  bo  material,"  but  to  take  down  his  xchole 
statement,"  it  would  seem  right  to  hold  that  he  had  done  so,  and 
that  no  parol  evidence  of  any  additional  statement  made  at  the 
same  time  could  be  received.* 

§  894.  If  however,  parol  evidence  of  such  additional  state-  §  817 
ment  be  admissible  on  the  part  of  the  prosecution,  the  prisoner, 
a  fortiori,  would  seem  entitled  to  pray  it  in  aid  of  his  defence; 
and  this  view  of  the  law  is  sanctioned,  not  only  by  the  case  of 
Yenafra  v.  Johnson,^  but  also  by  the  authority  of  Mr.  Starkie  and 
Mr.  Phillipps;  the  latter  of  whom,  while  he  denies  the  right  of 
the  Crown,  admits  the  right  of  the  accused,  to  produce  such 
evidence.**  Whatever  may  be  the  correct  rule  upon  this  particular 
point,  it  is  clear,  from  the  last  proviso  which  is  appended  to 
§  18  of  the  Act,  that"  a  written  examination  will  not  exclude 
parol  evidence,  either  of  an  extra-judicial  confession,  previously 
or  subsequently  made;^  or  of  a  statement  made  before  the  justice 
on  a  foi'mer  investigation,  and  not  incorporated  in  the  examina- 
tion returned; "  or  of  anything  incidentally  said  by  the  prisoner 
while  the  witnesses  were  deposing  against  him,  even  though  it 
were    addressed   to  the  magistrate  himself,'"  and    no  caution  had 


1  R.  r.  Bond,  4  Cox,  236. 

^  This  was  the  language  of  the  old  law.     See  7  G.  4,  c.  64,  §  3. 

3  See  11  &  12  v..  c.  42,  ?  18,  and  Sch.  N.,  cited  ante,  ^  888. 

*  See,  however,  Rowland  v.  Ashby,  Ry.  &  M.  232;  R.  r.  Harris,  1  Moo.  C. 
C.  338;  Leach  v.  Simpson,  5  M.  &  W.  312,  per  Parke,  B. 

^1  M.  &  Roh.  316,  per  Gaselee,  J.,  after  consulting  the  judges  of  C.  P. 
6  2  Ph.  Ev.  82—86;  3  St.  Ev.  787. 
■  Gr.  Ev.  §  227,  in  part. 

*  R.  V.  Carty,  Ridgway's  R.  73,  cited  in  Joy  on  Conf.  97,  and  McNally,  Ev. 
45;  R.  V.  Reason,  16  How.  St.  Tr.  35,  per  Eyre,  J. 

»  R.  V.  Wilkinson,  8  C.  &  P.  662,  per  Littledale,  J.,  and  Parke,  B. ;  R.  v. 
Bond,  4  Cox,  231;  IDen.  517,  S.  C. 

'"  R.  r.  Bond,  4  Cox,  231;  1  Den.  517;  3  C.  &  Kir.  337,  n.,  S.  C. ;  R.  r. 
Spilsbury,  7  C.   &  P.   187,   per   Coleridge,  J.;  R.   t;.  Johnson,  per  Parke,  B.- 

(3637) 


770  AVRITTKX  EXAMINATION — PAKOL  EVIDENCE.  [PAKT  II. 

been  previously  given. ^  So,  if  it  can  be  proved  that  tbe  pri- 
soner's examination  was  not  reduced  to  writing,  parol  evidence 
of  what  be  said  before  the  magistrates  will  be  received;^  though 
the  presumption  that  all  things  were  done  as  the  law  requires, 
renders  it  necessary  for  the  Crown  to  give  clear  evidence  on  this 
point;  ^  and  on  more  than  one  occasion  the  judges  seem  to  have 
thought  it  necessary  that  the  magistrate  or  his  clerk  should  be 
called  to  prove  the  negative  fact.*  Again,  if  the  written  examina- 
tion be  shown  to  have  been  lost,^  or  if  it  be  wholly  inadmissible 
under  the  statute  by  reason  of  irregularity,  parol  evidence  will  be 
received  to  prove  what  the  prisoner  voluntarily  disclosed;*^  and  in 
this  last  event  of  the  examination  being  rejected  for  informality,  it 
may  still  be  used,  either  as  a  contemporaneous  writing,  to  refresh 
the  memory  of  the  witness  who  wrote  it,^  or  if  it  be  signed  by  the 
prisoner,  it  will  be  receivable  at  common  law  as  his  confession, 
the  signature  being  first  proved,  and  it  being  shown  that  he  knew 
what  it  contained,** 


§  895.  One    species  of  irregularity,    however,  in  excluding  the    ?  818 
examination  as  evidence  per  se,  prevents  its  being  used  to  refresh 
the  writer's  memory,  and   shuts    out  all   parol  testimony  of  what 

E.  v.  Moore,  per  id. ;  R.  v.  Hooper,  per  Erskine,  J. ;  all  cited  in  2  Russ.  C.  &  M. 
879.  But  see  R.  v.  Weller,  2  C.  &  Kir.  223,  per  Piatt,  B.  Sed  qu.  as  to  this 
case. 

'  R.  r.  Stripp,  7  Cox,  97;  Pearee  &  D.  G48,  S.  C. 

2  R.  V.  Hall,  cited  by  Gro.se,  J.,  iu  R.  v.  Lamb,  2  Lea.  559;  R.  v.  Huet,  2 
Lea.  821. 

^  R.  V.  Fearshire,  1  Lea.  202;  R.  v.  Jacobs,  id.  309;  R.  v.  Hinxman,  per 
Ashhurst,  J.,  and  R.  v.  Fisher,  per  Heath,  J.,  cited  id.  310,  311,  n.;  R.  v. 
M'GoTern,  5  Cox,  506. 

*  R.  V.  Packer,  per  Parke,  J.,  and  R.  v.  Phillips,  per  Bosanquet,  J.,  both 
cited  2  Russ.  C.  &  M.  876,  n.  p;  Phillips  r.  AVinburn,  4  C.  &  P.  273,  per 
Tindal,  C.  J.  ^  R.  v.  Reason,  16  How.  St.  Tr.  35,  per  Eyre,  J. 

«  R.  V.  Reed,  M.  &  M.  403,  per  Tindal,  C.  J. 

'  R.  r.  Layer,  16  How.  St.  Tr.  214,  215,  per  Pratt,  C.  J.;  R.  v.  Watson,  3  C. 
&  Kir.  Ill;  R.  v.  Watkins,  per  Bosanquet,  J.,  cited  n.  6,  4  C.  &  P.  550;  R.  v. 
Tarrant,  6  C.  &  P.  182,  per  Patteson,  J.;  R.  v.  Pressly,  id.  183,  per  id.;  R.  v. 
Dewhurst,  and  R.  v.  Hirst,  per  Bayley^  J.;  1  Lew.  C.  C.  47;  R.  v.  Jones,  Carr. 
Or.  L.  13,  per  Bay  ley  and  Gaselee,  Js.,  and  Vaup;han,  B. ;  1  Lew.  C.  C.  47,  n. ; 
4C.  &P.  550,  n.,  S.  C;  R.  v.  Bell,  5  C.  &  P.  162,  per  Gaselee,  J.,  and  Ld. 
Tenterden. 

8  See  R.  V.  Sansome,  4  Cox^  203    1  Den.  545;  3  C.  &  Kir.  332,  S.  C. 

(3638) 


CHAP.  XV.]        EXAMINATION  TAKEN  IMPROPERLY  ON  OATH.  771 

was  said  on  the  same  occasion.  The  irregularity  in  question 
is  where  the  examination  purports  to  have  been  taken  upon  oath} 
This  rule,  which  is  supported  by  too  many  authorities  to  admit  of 
dispute,  rests  upon  two  principles  of  law,  both  of  which  are  of 
very  questionable  policy,  as  applied  to  the  particular  case  under 
discussion.  The  first  is  a  principle  which  has  been  several  times 
mentioned  above,  namely,  that  the  confession  of  a  prisoner  must 
be  voluntary:  and  it  is  contended,  that  a  statement  made  under 
oath  is  not  so.  This  is  certainly  true  in  one  sense,  though  not 
in  that  in  which  it  is  used  by  the  advocates  for  exclusion.  A 
confession  not  voluntary  is  excluded.  Why?  because  it  may 
be  untrue.  A  confession  made  upon  oath  cannot  be  rejected  on 
this  groxmd;  since  it  is  absurd  to  contend,  that  an  oath,  which  in 
all  other  cases  is  rightly  considered  as  the  most  eflPectual  tests  of 
truth,  should,  if  taken  by  a  prisoner,  be  regarded  as  an  induce- 
ment to  falshood.  But  then,  it  is  urged,  nemo  tenetur  prodere 
seipsum;  a  prisoner  should  not  be  compelled  to  criminate  himself. 
Admitted;  but  what  then?  A  prisoner,  though  sworn,  is  no 
more  bound  to  criminate  himself,  than  if  he  were  simply  inter- 
rogated without  any  oath  being  administered  to  him.  He  has 
still  full  liberty  to  decline  to  make  any  explanation  or  declaration 
whatever;  though  if  he  does  consent  to  answer  the  questions  put 
to  him,  he  may,  perhaps,  incur  the  penalties  of  perjury  should  he 
knowingly  utter  what  is  false.^  "  But  a  friendless  accused  is  not 
aware  of  the  law  in  his  favour."  This  may  be  so;  but  in  what 
other  case  is  a  party  at  liberty  to  set  up  his  ignorance  of  the  law  ? 
If  the  maxim  of  the  common  law,  ignorantia  legis  neminem 
excusat,  be  sound,  as  it  unquestionably  is;  and  if,  consequently, 
the  defence  of  acting  in  ignorance  cannot  protect  an  offender  even 
from  punishment;  on  what  principle  of  justice  is  the  accused 
entitled  to  say,  "  I  confessed  my   crime,  and  have  sworn  that  my 


'  R.  V.  Smith,  1  Stark.  R.  242,  per  Le  Blanc,  J. ;  R.  v.  Davis,  6  C.  &  P.  177, 
per  Gurney,  B. ;  R.  v.  Bentley,  id.  148,  per  id. ;  R.  v.  Rivers,  7  C.  &  P.  177, 
per  Park,  J. ;  R.  v.  Owen,  9  C.  &  P.  238,  per  Gurney,  B. ;  R.  v.  Pikesley,  id. 
124,  Per  Parke,  B.,  and  Bosanquet,  J.;  R.  v.  Wheeley,  8  C.  &  P.  250,  per 
Alderson,  B. 

^  This,  however,  seems  doubtful,  as  the  magistrate  has  no  authority  to 
administer  such  an  oath.  ^ 

28  LAW  OF  EVID.— V.  II.  (3639) 


772  EXAMINATIONS  PURPORTING  TO  BE  ON  OATH.  [PABT  II. 

statement  is  true;  but  you,  the  jury,  must  not  bear  what  I  said, 
because  I  was  not  aware  of  the  existence  of  a  rule  of  law,  which 
would  have  expressly  justified  me  in  holding  my  peace "  ?  If 
the  practice  of  examining  prisoners  on  oath  be  deemed  inquisi- 
torial and  harsh,  let  it  be  discountenanced,  not  by  rejecting  a 
confession  so  obtained,  but  by  prohibiting  justices  from  acting  in 
this  manner,  or  even  by  rendering  them  liable  to  a  penalty  in  case 
of  disobedience. 


§  896.  It  may  be  thought,  at  first  view,  that  if  this  change  were 
effected,  the  practical  result  would  be  the  same;  but  this  is  not  the 
case;  since,  at  present,  not  only  are  all  confessions  made  upon  oath 
rejected,  but  all  those  rc/wc/i  pttrpor^  to  be  so  made, -^  and  this  leads 
us  to  the  second  principle  of  law,  on  which  the  rule  under  discus- 
sion rests.  That  principle  is,  that  as  the  justices,  in  discharge  of 
their  duty,  ought  to  make  a  true  return  of  what  took  place  before 
them,  the  court  will  presume  that  they  have  thus  acted;  and,  there- 
fore, will  not  admit  parol  evidence  to  vary  or  contradict  the  written 
document  so  returned.  Now,  the  fallacy  of  this  reasoning  is 
obvious.  In  the  first  place,  the  presumption,  omnia  rite  esse  acta, 
is  not  conclusive  in  ordinary  cases,  and  should  not  be  so  in  this  ; 
and  next,  even  supposing  that  it  should,  it  does  not  apply.  The 
duty  of  the  justice  is  two-fold:  first,  to  examine  the  prisoner 
without  administering  an  oath  to  him; "  and,  secondly,  to  make  a 
true  retiirn  of  his  statement.  If,  then,  an  examination  be  returned, 
which  purports  to  have  been  taken  on  oath,  the  presumption  that 
this  return  is  true  is  at  least  counterbalanced  by  the  opposite  pre- 
sumption, that  the  justice  has  discharged  his  duty  by  not  swearing 
the  prisoner;  and  the  result  is,  that  parol  evidence  should  be 
received,  in  order  to  ascertain  which  presumption  is  in  accordance 
with  the  fact.  The  principle,  that  written  documents  shall  not  be 
varied  or  contradicted  by  parol  testimony,  may  apply  to  the  body 
of  the  examination,  which  is  taken  down  by  the  justice  or  his 
clerk,  and  is  expressly  assented  to  by  the  accused;  but  it  should 
not  extend  to  the  mere  formal  heading  or  conclusion  of  the 
examination,  which  is  not,  or  at  least  need  not  be,  read  over  to  the 


>  See  cases  cited  ante,  p.  771,  n.  \  *  B.  N.  P.  242. 

(3640) 


CHAP.  XV.]  SWORN  CONFESSIONS,  WHEN  ADMISSIBLE.  773 

prisoner,  or  admitted  to  be  correct  by  him;  and  a  mis-statement 
in  which  may,  and,  in  fact,  notoriously  does,  often  arise  from  the 
inadvertence  or  carelessness  of  the  magistrate  or  his  clerk.  If 
the  justice  were  liable  to  a  penalty,  as  above  suggested,  for  taking 
a  prisoner's  confession  on  oath,  he  would  clearly  be  entitled,  if 
sued  or  prosecuted  for  such  penalty,  to  show  that,  though  the 
examination  purported  on  its  face  to  have  been  taken  on  oath,  the 
prisoner  was  not  in  fact  sworn;  and  no  real  danger  could  be 
apprehended,  but  on  the  contrary  much  benefit  would  accrue  to 
the  administration  of  criminal  justice,  if  a  similar  course  of  pro- 
ceeding were  allowec!,  when  the  question  was  whether  a  confession 
was  receivable  or  not.  However,  as  before  stated,  the  authorities 
in  favour  of  rejecting  examinations  which  purport  to  be  upon  oath 
are  so  numerous  and  consistent,  that,  without  the  aid  of  the  Legis- 
lature, little  hope  can  be  entertained  that  a  more  satisfactory  rule 
will  be  adopted  in  practice.' 

§  897.  Where  a  prisoner,  on  being  mistaken  for  a  witness,  was  I  820 
partially  examined  upon  oath,  but,  the  mistake  being  discovered, 
the  deposition  was  destroyed, — a  subsequent  statement  made  by 
him,  after  due  caution  from  the  magistrate,  was  held  to  be  clearly 
admissible.-  And,  indeed,  the  rule  excluding  sworn  confessions 
seems  strictly  confined,  at  common  law,  to  the  case  of  a  statement, 
made  by  the  party  upon  oath,  while  a  prisoner  under  examination 
respecting  the  criminal  charge.^  It  is  true  that  one  or  two  deci- 
sions by  Mr.  TBaron  Gurney  might  be  cited,  which  seem  to  extend 
the  rule  somewhat  further,  and  to  render  inadmissible  confessions 
made  on  oaths  to  magistrates  or  coroners  by  parties,  who,  after 
being  examined  as  witnesses,  have  themselves  been  committed  for 
trial;*  but  these  decisions  have  been  overruled  by  subsequent 
cases.'* 


^  See  cases  cited  ante,  p.  771,  n.  '.  See,  also.  No.  57  of  Law  Mag.  Vol.  28, 
pp.  13 — 19,  where  the  anomalies  in  the  present  law  of  confessions  are  amus- 
ingly exposed.  ^  R.  v.  Webb,  4  C.  &  P.  564,  per  Garrow,  B. 

=>  See  Joy  on  Conf.  G2— G8. 

♦  K.  V.  Lewis,  6  C.  &  P.  161,  per  Gurney,  B. ;  R.  v.  Davis,  id.  177,  per  id.; 
R.  V.  Owen,  9  C.  &  P.  83,  per  id.  See,  also,  n.  w,  in  2  Russ.  C.  &  M.  860;  and 
R.  V.  M'Hugh.  7  Cox,  483,  per  Jr.  Cr.  Ct.  of  App.,  Pennefather,  B.,  diss. 

*  See  R.  t\  Gillis,  17  Ir.  Law  R.,   N.  S.  534,  per  O'Hagan,  J.;  R.  v.  Coote, 

(3641) 


774-  SWORN  CONFESSIONS,  WHEN  ADMISSIBLE.  [PART  II. 

§  898.  Thus,  the  judges  have  held,  that,  on  an  indictment  for 
forging  a  bill  of  exchange,  depositions  of  the  prisoner,  which  had 
been  taken  on  oath  before  commissioners  of  bankruptcy,  after  the 
prisoner  had  been  charged  before  the  mayor  with  forging  the  bill, 
were  admissible  against  him; '  and  in  another  case,  where  a  bank- 
rupt had  been  examined  before  a  commissioner  touching  some 
matter  irrespective  of  his  trade  dealings,  and  had  not  objected  to 
answer  the  questions  put,  his  examination  was  held  to  be  admis- 
sible evidence  against  him  on  a  subsequent  criminal  charge.^  So, 
where  a  trader  was  indicted  for  obtaining  property  on  credit,  under 
the  false  pretence  of  dealing  in  the  ordinary  way  of  his  trade, 
■within  four  months  before  his  liquidation,^  his  examination,  taken 
in  liquidation  under  §  97  of  the  Bankruptcy  Act,  1869,*  was 
admitted  in  evidence  against  him.^  So,  on  a  charge  of  arson, 
depositions  made  by  the  prisoner  when  under  examination  as  a 
witness  respecting  the  origin  of  the  tire,  have  been  read  against 
him.' 


Again,  on  the  trial  of  an  indictment  for  conspiracy,  the 
answers  in  Chancery  of  the  defendants,  made  on  oath  by  them  in  a 
suit  instituted  against  them  by  the  prosecutor,  have  been  received.' 
An  affidavit,  too,  has  been  given  in  evidence  against  a  prisoner, 
which  was  sworn  by  him  in  a  suit  in  Doctors'  Commons;^  and 
depositions  made  by  prisoners,  when  examined  as  witnesses 
against  other  persons  on  criminal  charges,  have  several  times  been 


4  Law  Rep.,  P.  C.  605,  606,  per  Sir  R.  Collier;  42  L.  J.,  P.  C.  47,  48;  12  Cox, 
562,  S.  C. 

'  R.  V.  Wheater,  2  Moo.  C.  C.  45;  2  Lew.  C.  C.  157,  S.  C.  See  R.  v.  Cherry, 
12  Cox,  32. 

"^  R.  r.  Sloggett,  Pearce  &  D.  656;  7  Cox,  139,  S.  C.  See,  also,  R.  v.  Scott,  25 
L.  J.,  M.  C.  128;  and  R.  v.  Hillam,  12  Cox,  174. 

3  Contrary  to  §  H  of  the  Debtors  Act,  1869,  32  &  33  V.,  c.  62. 

*  32  &  33  v.,  c.  71. 

?  R.  V.  Widdop,  42  L.  J.,  M.  C.  9;  2  Law  Rep.,  C.  C.  3;  12  Cox,  251, 
S.  C. 

«  R.  V.  Coote,  4  Law  Rep.,  P.  C.  599;  42  L.  J.,  P.  C.  45;  12  Cox,  557,  S.  C. 

^  R.  V.  Goldshede,  1  C.  &  Kir.  657,  per  Ld.  Denman;  R.  v.  Highfield,  per 
Vaughan,  B.,  cited  2  Russ.  C.  &  M.  859. 

8  R.  V.  AValker,  per  Ld.  Ellenborough,  cited  by  Gurney,  B.,  in  6  C.  &  P.  162. 

(3642) 


CHAP.  XV.]         SWOKN  CONFESSIONS,  WHEN  ADMISSIBLE.  775 

admitted  against  themselves.'  Nay,  in  one  case,  the  very  point 
decided  by  Mr.  Baron  Gurney  was  distinctly  overruled  by  Chief 
Justice  Cockburn;  and  a  deposition  was  admitted  against  a  pri- 
soner, who  had  made  it  before  the  justices  while  under  examina- 
tion as  a  witness,  and  who,  in  consequence  of  its  self-criminating 
character,  had  been  committed  to  take  his  trial.^  So,  upon  a 
trial  for  manslaughter,  the  prisoner's  deposition  on  oath,  taken  by 
the  coroner  upon  the  inquest,  has  been  admitted  in  evidence 
against  him.^  So,  the  testimony,  given  by  a  prisoner  before  a 
committee  of  the  House  of  Commons,  has  been  read  against  him 
on  a  criminal  trial;*  though  this  case  is  of  little  authority  on  the 
subject  under  discussion,  as  the  evidence  could  not  then  have  been 
given  on  oath.^  The  case  of  R.  v.  Britton,®  which  is  sometimes 
cited  as  a  decision  conflicting  with  the  above  proposition,  is  in 
fact  no  hostile  authority,  as  the  only  question  there  determined 
was,  that  on  an  indictment  against  a  bankrupt  for  not  disclosing 
his  effects  under  the  commission,  his  balance-sheet,  which  was 
only  admissible  in  the  event  of  the  commission  being  valid,  could 
not  be  given  in  evidence  to  prove  the  petitioning  creditor's  debt  as 
a  part  of  the  commission.'  On  the  whole  it  seems  clear,  that  if  a 
prisoner,  on  being  examined  as  a  witness,  has  consented  to  answer 
questions,  to  which,  he  might  have  demurred  as  tending  to  criminate 
himself,  and  which,  therefore,  he  was  not  bound  to  answer,  his 
statement  will  be  deemed  voluntary,  and,  as  such,  may  be  subse- 
quently used  against  himself  for  all  purposes,^  unless  he  be  pro- 
tected by  the  special  language  of  some  statue.'' 


1  R.  V.  Haworth,  4  C.  &  P.  254,  per  Parke,  J. ;  R.  v.  Tubby,  5  C.  &  P.  530, 
per  Vaughan,  B. ;  R.  v.  Braynell,  4  Cox,  402. 

"^  R.  V.  Chidley  &  Cummins,  8  Cox,  3G5.  See,  also,  R.  v.  Colmer,  9  Cox,  506, 
per  Martin,  B. 

=»  R.  V.  Bateman,  4  Post.  &  Fin.  1068,  per  Martin,  B.,  and  Willes,  J. 

*  R.  V.  Merceron,  2  Stark.  R.  366,  per  Abbott,  J. 

*  See  per  Ld.  Tenterden,  in  R.  v.  Gilham,  1  Moo.  C.  C.  203. 
^  1  M.  &  Rob.  297,  per  Patteson  and  Alderson,  Js. 

^  Per  Patteson,  J.,  explaining  that  decision  in  R.  v.  Wheater,  2  Moo.  C. 
C.  51. 

8  But  see  R.  v.  Gillis,  17  Ir.  Law  R.,  N.  S.  512;  11  Cox,  69  S.  C; 
where  a  large  majority  of  the  Irish  judges  took  a  different  view  of  the  law. 
Sed  qu. 

^  See  post,  ^  1455,  as  to  these  statutes. 

(3643) 


776    PROPERTY  FOUND  IN  CONSEQUENCE  OF  CONFESSION.   [pARI  11. 

§  900.  Although  a  prisoner  cannot,  at  common  law,  exclude  his  ^  822 
own  confession,  on  the  sole  ground  that  it  was  made  by  him  while 
a  witness  under  oath,  yet,  if  he  can  prove  that,  when  questions 
tending  to  criminate  him  were  put,  he  had  claimed  the  protection 
of  the  court,  and  had  still  been  illegally  compelled  to  answer,  his 
answers  cannot  be  given  in  evidence  against  himself.'  Testimony 
so  obtained  is  excluded,  not,  as  it  seems,  because  it  may  possibly  be 
untrue,  but  because  the  right  of  the  witness  to  be  silent  has  been 
infringed;  and  it  is  deemed  expedient,  on  grounds  of  public  policy, 
to  uphold  the  broad  legal  maxim,  that  no  man  shall  be  forced  to 
criminate  himself.' 


§  901.  Notwithstanding  that  the  statutes  which  prescribe  the 
duty  of  coroners  contain  no  provision  for  taking  the  examination  of 
the  accused,  but  simply  enact,  that  every  coroner  shall  put  in  writing 
the  evidence  given  to  the  jury  before  him,  or  as  much  thereof,  as 
shall  be  material,  and  shall  certify  and  subscribe  the  same,  and 
deliver  it  to  the  officer  of  the  court  in  which  the  trial  is  to  be,^ — 
it  seems  on  several  occasions  to  have  been  assumed,  that  the 
coroner  has  the  same  authority  to  take  the  examination  of  a  pri- 
soner as  a  magistrate.* 

§  902.^  When,  in  consequence  of  information  unduly  obtained 
from  the  prisoner,  the  property  stolen,  or  the  instrument  of  the 
crime,  or  the  body  of  the  person  murdered,  or  any  other  material 
fact,  has  been  discovered,  proof  is  admissible  that  such  discovery 
was  made  conformably  with  the  information  so  obtained.  The 
prisoner's  statement  as  to  his  knowledge  of  the  place  where  the 
property  or  other  article  was  to  be  found,  being  thus  confirmed 


'  R.  V.  Garbett,  1  Den.  236;  2  C.  &  Kir.  474,  S.  C.     See  post,  I  1453,  et  seq., 
as  to  what  questions  a  witness  may  refuse  to  answer. 

^  R.  V.  Garbett,  1  Den.  257,  per  Alderson,  B.     But  see  cases  cited  in  ?  898, 
ante. 

3  7   G.  4,  c.  64,  ??  4  &  6;   9  G.  4,  c.  54,  |M  &  6,  Ir.     It  may  be  doubted 
whether  §4  of  7  G.  4,  c.  64,  be  not  now  repealed  by  §  34  of  11  &  12  V.,  c.  42. 

*  R.  V.  Reid,  M.  &  M.  403,  cor.  Tindal,  C.  J. ;  R.  v.  Roche,  C.  &  Marsh.  341, 
cor.  Ld.  Denman ;  Brogan's  case,  2  Russ.  C.  &  M.  874,  cor.  Ld.  Lyndhurst. 

'  Gr.  Ev.  §  231,  in  great  part. 

(3644) 


CHAP.  XV.]  PROPERTY  FOUND  IN  CONSEQUENCE  OF  CONFESSION.  777 

by  the  fact,  is  shown  to  be  true,  and  not  to  have  been  fabricated  in 
consequence  of  any  inducement.  It  is,  therefore,  competent  to 
prove  that  the  prisoner  stated  that  the  thing  would  be  found  by 
searching  a  particular  place,  and  that  it  was  accordingly  so  found; 
but  it  would  not  be  competent  to  inquire  whether  he  confessed  that 
he  had  concealed  it  there.'  Lord  Eldon  has  laid  down  the  rule 
somewhat  more  strictly,  saying,  in  Harvey's  case,^  .that,  where  the 
knowledge  of  any  fact  was  obtained  from  a  prisoner,  under  such  a 
promise  as  excluded  the  confession  from  being  given  in  evidence, 
he  should  direct  an  acquittal,  unless  the  fact  proved  would  itself 
have  been  sufficient  to  warrant  a  conviction,  without  any  confession 
leading  to  it.  But  the  sounder  doctrine  seems  to  be,  that  so  much 
of  the  confession  as  relates  distinctly  to  the  fact  discovered  by  it 
may  be  given  in  evidence,  as  this  part  at  least  of  the  statement 
cannot  have  been  false.' 


§  903.*  If  \he  prisoner  himself  delivers  up  the  goods  stolen,  the  I  825 
fact  that  this  was  done  upon  inducements  to  confess  held  out 
by  persons  in  authority,  will  afford  no  ground  for  rejecting  his 
declarations,  contemporaneous  with  the  act  of  delivery,  and  explana- 
tory of  its  object,  though  they  may  amount  to  a  confession  of 
guilt.^  But  whatever  he  may  have  said  at  the  same  time,  not 
qualifying  or  explaining  the  act  of  delivery,  must  be  rejected.  And 
if, — notwithstanding  the  prisoner's  confession,  thus  improperly 
induced,  and  any  acts  done  by  him  in  furtherance  of  the  discovery, — 
the  search  for  the  property  or  person  in  question  be  ineffectual,  no 
proof  of  either  the  confession  or  the  acts  can  be  received.  The 
confession  is  excluded,  because,  being  made  under  the  influence  of 
a  promise,  it  cannot  be  relied  upon;  and  the  acts  done  under  the 
same  influence,  not  being  confirmed  by  the  finding  of  the  property 


'  Ph.  Ev.  411;  R.  v.  Warickshall,  1  Lea.  263;  R.  v.  Mosey,  id.  265,  n.,  per 
Buller,  J.,  and  Perryn,  B.;  R.  v.  Lockhart,  id.  386;  R.  v.  Gould,  9  C.  &  P. 
364,  perTindal,  C.  J.,  and  Parke,  B.;  R.  v.  Thurtell,  cited  Joy  on  Conf.  84;  R. 
V.  Cain,  1  Cr.  &  D.,  C.  C.  37,  per  Torrens,  J.;  Com.  v.  Knapp,  9  Pick.  496, 
511.  2  2  East,  P.  C.  658. 

^  R.  V.  Butcher,  1  Lea.  265,  n. ;  and  see  the  cases  cited  above,  n.  ^ 

*  Gr.  Ev.  ?  232,  in  part. 

^  R.  V.  Griffin,  R.  &  R.  151;  R.  v.  Jones,  id.  152. 

(3645) 


778  CONFESSIONS  OF  ACCOMPLICES — OF  AGENTS.  [PAET  II. 

or  person,  are  open  to  the  same  objection.  The  influence  which 
may  produce  a  groundless  confession  may  also  produce  groundless 
conduct.' 

§  904.  A  prisoner  is  not  liable  to  be  affected  by  the  confessions 
of  his  accomplices;'^  and  so  strictly  has  this  rule  been  enforced, 
that  where  a  person  was  indicted  for  receiving  stolen  goods,  a 
confession  by  the  principal  that  he  was  guilty  of  the  theft,  was 
held  by  all  the  judges  to  be  no  evidence  of  that  fact  as  against 
the  receiver;^  and  the  decision,  it  seems,  would  be  the  same,  if 
both  parties  were  indicted  together,  and  the  principal  were  to  plead 
guilty.* 

§  905.^  The  same  doctrine  prevails  in  cases  of  agency.  In 
general,  no  person  is  answerable  criminally  for  the  acts  of  his 
servants  or  agents,  whether  he  be  the  prosecutor  or  the  accused, 
unless  a  criminal  design  be  brought  home  to  him.*^  The  act  of  the 
agent  or  servant  may  be  shown  in  evidence,  as  proof  that  such  an 
act  was  done;  for  a  fact  mugt  be  established  by  the  same  evidence, 
whether  it  be  followed  by  a  criminal  or  civil  consequence;  but  it  is 
a  totally  different  question,  in  the  consideration  of  criminal  as  dis- 
tinguished from  civil  justice,  how  the  principal  may  be  affected  by 
the  fact,  when  so  established.  For  though  the  wrongful  or  fraudu- 
lent act  of  the  agent  may  involve  his  principal  civilly,'  it  cannot 

»  R.  V.  Jenkins,  R.  &  R.  492. 

*  So  is  the  Roman  law.  "Confessio  unius  non  probat  in  prsejudicium 
alterius,  quia  alias  esset  in  manu  confitentis  dicere  quod  vellet,  et  sic  jus  alteri 
qiia;situm  auferre,  quando  omnino  jura  prohibent;  etiamsi  talis  confitens  esset 
onini  exceptione  major.  Sed  limitabis,  quando  inter  partes  convenit  parere 
confessioni  et  dicto  unius  alterius."  1  Masc.  de  Prob.,  Concl.  486,  p.  409.  See 
ante,  U  593,  594. 

3  R.  V.  Turner,  1  Moo.  C.  C.  347. 

*  Id.  348,  citing  an  anonymous  decision  of  Wood,  B. 
^  Gr.  Ev.  ?  234,  in  great  part. 

6  See  Cooper  v.  Slade,  6  H.  of  L.  Cas.  746,  793,  794,  per  Ld.  Wensleydale. 

^  Barwick  v.  Eng.  Jt.  Stock  Bk.,  2  Law  Rep.,  Ex.  259,  per  Ex.  Ch.;  36  L. 
J.,  Ex.  174,  S.  C;  Proudfoot  v.  Montefiore,  2  Law  Rep.,  Q.  B.  511;  8  B.  &  S. 
510,  S.  C;  Moore  v.  Metrop.  Ry.  Co.,  8  Law  Rep.,  Q.  B.  36;  Mackay  i'.  Com. 
Bk.  of  New  Brunswick,  43  L.  J.,  P.  C.  31;  5  Law  Rep.,  P.  C.  394,  S.  C;  Swire 
V.  Francis,  47  L.  J.,  P.  C.  18;  Burmah  Trading  Corp.  Lim.  v.  Mirza  Mahomed 
Ally,  &c.,  L.  R.,  5  Ind.  Ap.  130.  See  Ld.  Bolinbrokei'.  Local  Board  of  Health 
of  Swindon,  34  L.  J.,  C.  P.  287.  Shaw  v.  Port  Philip  Gold  Min.  Co.,  53  L.  J., 
Q.  B.  369;  L.  R.,  13  Q.  B.  D.  103,  S.  C. 

(3646) 


CHAP.  XY.]  CONFESSIONS  OF  AGENTS — NEWSPAPERS.  779 

convict  him  of  a  crime,  unless  further  proof  be  given  that  the 
principal  has  directed,  or,  at  least,  assented  to  such  act.'  Where 
it  was  proposed  to  show  that  an  agent  of  the  prosecutor,  not  called 
as  a  witness,  had  offered  a  bribe  to  a  witness,  who  also  was  not 
called,  the  evidence  was  held  inadmissible  ;  though  the  general 
doctrine,  as  above  stated,  was  recognised.^ 

§  906.  The  rule  thus  generally  laid  down  is  open  to  an  apparent  §  827 
exception  in  the  case  of  the  proprietor  of  a  newspaper,  who  is, 
prima  facie,  criminally  responsible  for  any  libel  it  contains,  though 
inserted  by  his  agent  or  servant  without  his  knowledge.  But  Lord 
Tenterden  considered  this  case  as  falling  strictly  within  the  prin- 
ciple of  the  rule;  for  "surely,"  said  he,  "a  person  who  derives 
profit  from,  and  furnishes  means  for  carrying  on,  the  concern,  and 
intrusts  the  conduct  of  the  publication  to  one  whom  he  selects,  and 
in  whom  he  confides,  may  be  said  to  cause  to  be  published  what 
actually  appears,  and  ought  to  be  answerable,  though  you  cannot 
show  that  he  was  individually  concerned  in  the  particular  publica- 
tion." ^  Yet  even  here  the  defendant  may  prove,  if  he  can,  that 
the  publication  was  made  by  his  servant  without  his  authority, 
consent,  or  knowledge,  and  that  it  did  not  arise  from  want  of  due 
care  or  caution  on  his  part.* 

§  907.  It  remains  only  to  be  observed,   that  confessions,  like    §  828 
admissions,  may  be  inferred  from  the  conduct  of  the  prisoner,  and 
from  his  silent  acquiescence   in  the  statements  of  others,  made  in 
his  presence,   respecting  himself;  ^  provided  they  were  not  made 
either  before  a  magistrate,  when  the  prisoner,  from  a  sense  of  de- 


'  Ld.  Melville's  case,  29  How.  St.  Tr.  764;  the  Qdeen's  case,  2  B.  &  B.  306, 
307;  ante,  §  724. 

«  The  Queen's  case,  2  B.  &  B.  302,  306—309. 

*  R.  I'.  Gutch,  M.  &.  M.  433,  437.  See,  further,  as  to  the  acts  of  agents  ante, 
?  115. 

*  6  &  7  v.;  c.  96,  §  7;  R.  r.  Holbrook,  L.  R.,  3  Q.  B.  D.  60;  S.  C.  on  second 
trial,  L.  R.,  4  Q.  B.  D.  42;  48  L.  J.,  Q.  B.  113;  and  14  Cox,  185,  S.  C.  See, 
also,  R.  V.  Ramsay,  15  Cox,  231. 

*  R.  V.  Bartlett,  7  C.  &  P.  832,  per  Bolland,  B. ;  R.  v.  Smithies,  5  C.  &  P. 
332,  per  Gaselee  and  Parke,  Js. ;  ante,  ^§  809—816.  See  St.  Matthew,  eh.  26, 
vv.  60—63,  and  eh.  27,  vv.  12—14. 

(3647) 


7S0  CONFESSIONS  IMPLIED  FROM  ACQUIESCENCE.  [pAKT  II. 

coram,  might  have  felt  himself  restrained  from  interposing,  or  under 
any  other  circumstances,  which  would  naturally  have  prevented 
him  from  replying.'  In  the  case  of  R.  v.  Newman,^  it  was  sought 
to  push  this  doctrine  to  an  unwarrantable  length.  That  was  an 
information  for  libel,  to  which  truth  was  pleaded  as  a  justification 
under  the  Act  of  6  «fe  7  V.,  c.  96,  and  the  defendant  tendered 
evidence  to  prove  that  the  very  imputations  contained  in  the  libel 
in  question  had  been  previously  published  in  another  work,  and 
that  the  prosecutor,  though  well  aware  of  that  fact,  had  taken  no 
steps  to  obtain  redress.  The  court,  however,  very  properly  rejected 
the  evidence,  as  being  far  too  vague  to  be  received  in  a  court  of 
justice  as  any  proof  of  acquiescence. 


1  R.  V.  Appleby,  3  Stark.  R.  33,  per  Holroyd,  J. ;  Melen  v.  Andrews,  M.  &  M. 
336,  per  Parke,  B.;  Joy  on  Conf.  77—80;  ante,  I  814. 

2  22  L.  J.,  Q.  B.  156;  1  E.  &  B.  268;  3  C.  &  Kir.  252,  S.  C. 


(3648) 


CHAP.  XVI.]    EVID.  EXCLUDED  ON  GROUNDS  OP  PUBLIC  POLICY.  781 


CHAPTEK  XVI. 

EVIDENCE    EXCLUDED    ON    GROUNDS    OF    PUBLIC    POLICY. 

§  908.'  The  law  excludes  or  dispenses  with  some  kinds  of  evi-  ?  829 
dence  on  grounds  of  public  policy:  because  it  is  thought  that 
greater  mischiefs  would  probably  result  from  requiring  or  permitting 
their  admission,  than  from  wholly  rejecting  them.  This  rule  of 
law  has  respect,  in  some  cases,  to  the  person  testifying,  and  will 
hereafter  be  discussed  in  the  chapter  relating  to  the  Competency  of 
Witnesses.^  In  other  cases  the  rule  applies  to  the  matter  con- 
cerning which  the  witness  is  interrogated;  and  it  is  to  this  branch 
of  the  rule  that  our  attention  will  at  present  be  directed. 

§  909.  The  first  class  of  subjects  which  the  law  protects  from  ?  830 
disclosure,  includes  all  communications  between  husband  and  wife. 
"No  husband,"  says  the  Legislature,  "shall  be  compellable  to  dis- 
close any  communication  made  to  him  by  his  wife  during  the 
marriage,  and  no  wife  shall  be  compellable  to  disclose  any  commu- 
nication made  to  her  by  her  husband  during  the  marriage."^  This 
wise  enactment  rests  on  the  obvious  ground,  that  the  admission  of 
such  testimony  would  have  a  powerful  tendency  to  disturb  the  peace 
of  families,  to  promote  domestic  broils,  and  to  weaken,  if  not  to 
destroy,  that  feeling  of  mutual  confidence,  which  is  the  most 
endearing  solace  of  married  life.  The  protection  is  not  confined  to 
cases  where  the  communication  sought  to  be  given  in  evidence  is  of 
a  strictly  confidential  character,  but  the  seal  of  the  law  is  placed 
upon  all  communications  of  whatever  nature  which  pass  between 
husband  and  wife.*  It  extends  also  to  cases  in  which  the  interests 
of  strangers  are  solely  involved,  as  well  as  to  those  in  which  the 
husband  or  wife  is  a  party  on  the  record.     It  is,  however,  limited 


'  Gr.  Ev.  §  236,  in  part.  "^  Part  iii.  Ch.  ii. 

»  16  &  17  v.,  c.  83,  §  3. 

*  See  O'Connor  v.  Marjoribanks,  4  M.  &  Gr.  435. 

(3649) 


782  COMMUNICATIONS    BETWEEN   HUSBAND    AND    WIFE.     [PART    II. 

to  such  matters  as  have  been  communicated  "  during  the  marriage;" 
and,  consequently,  if  a  man  were  to  make  the  most  confidential 
statement  to  a  woman  before  he  married  her,  and  it  were  afterwards 
to  become  of  importance  in  a  civil  suit  to  know  what  that  statement 
was,  the  wife,  on  being  called  as  a  witness,  and  interrogated  with 
respect  to  the  communication,  would,  as  it  seems,  be  bound  to 
disclose  what  she  knew  of  the  matter. 


§  910.  In  interpreting  the  rule  it  may  become  a  question  I  831 
whether  or  not  it  be  material  that  the  relation  of  husband  and  wife 
should  be  still  subsisting  at  the  time  when  the  evidence  is  required 
to  be  given.  On  the  one  hand,  the  statute  speaks  only  of  husbands 
and  wives,  and  makes  no  reference  either  to  widowers  or  widows,  or 
to  parties  who  have  been  divorced;  but  on  the  other  hand,  the  old 
common  law  rule,  which  precluded  husbands  and  wives  from  giving 
evidence  for  or  against  each  other,  has  been  construed  by  the  judges 
to  mean,  that  whatever  had  come  to  the  knowledge  of  either  party 
by  means  of  the  hallowed  confidence  which  marriage  inspires,  could 
not  be  afterwards  divulged  in  testimony,  even  though  the  other 
party  were  no  longer  living.'  So,  where  a  woman,  who  had  been 
divorced  by  Act  of  Parliament,  and  had  married  another  person, 
was  offered  as  a  witness  against  her  former  husband,  to  prove  a 
contract  which  he  had  made  during  the  coverture.  Lord  Alvanley 
held  her  clearly  incompetent,  adding,  with  his  characteristic  energy, 
"  It  never  can  be  endured,  that  the  confidence,  which  the  law  has 
created  while  the  parties  remained  in  the  most  intimate  of  all  re- 
lations, shall  be  broken,  whenever,  by  the  misconduct  of  one  party, 
the  relation  has  been  dissolved."  ^ 


§  911.^  Secondly,   as  regards  professional  communications,  the    §  832 
rule  is  now  well  settled,  that,  where  a  bannister  or  solicitor  is  pro- 


'  O'Connor  v.  Marjoribanks,  4  ]\I.  &  Gr.  435  ;  overruling  Beveridge  v. 
Minter,  1  C.  &  P.  364,  and  confirming  ISIonroe  v.  Twistleton,  Pea.  Add.  Cas. 
219.     See,  also,  Doker  v.  Hasler,  Ry.  &  M.  198,  per  Best,  C.  J. 

"^  Monroe  v.  Twistleton,  Pea.  Add.  Cas.  221  ;  explained  and  confirmed  by  Ld. 
Ellenborough  in  Aveson  v.  Ld.  Kinnaird,  6  East,  192,  193. 

3  Gr.  Ev.  g  237,  slightly. 

(3650)- 


CHAP.  XVI.  J    COMMUNICATIONS  BETWEEN  SOLICITOR  AND  CLIENT.     783 

fessionally  employed  by  a  client,  all  communications  which  pass 
between  them  in  the  course  and  for  the  purpose  of  that  employment, 
are  so  far  privileged,  that  the  legal  adviser,  when  called  as  a  witness, 
cannot  be  permitted  to  disclose  them,  whether  they  be  in  the  form 
of  title  deeds,  wills,'  documents,  or  other  papers  delivered,  or  state- 
ments made,  to  him,  or  of  letters,  entries,  or  statements,  written  or 
made  by  him  in  that  capacity.^  After  stating  the  rule  in  this 
general  form,  it  seems  almost  needless  to  add,  that  cases  laid  before 
counsel  on  behalf  of  a  client,  and  the  opinions  of  counsel  thereon, 
stand  upon  precisely  the  same  footing  as  other  professional  com- 
munications from  the  client  to  the  counsel  and  solicitor,  or  to  either 
of  them,  or  from  the  counsel  and  solicitor,  or  from  either  of  them, 
to  the  client.^ 

§  912.  This  rule  equally  applies,  though  the  solicitor  be  em-  ?  833 
ployed  in  the  character,  either  of  a  scrivener  to  raise  money,*  or  of 
a  conveyancer  to  draw  deeds  of  conveyance;^  or  though  the  conver- 
sation relate  only  to  the  sale  of  an  estate,  and  to  the  amount  of  the 
bidding  to  be  reserved.^  In  fact  it  extends  to  all  communications 
between  a  solicitor  and  his  client,  relating  to  matters  within  the 
ordinary  scope  of  a  solicitor's  daty.^     It  seems,  also,  that  the  legal 


^  Doe  V.  James,  2  M.  &  Rob.  47.  There,  a  party  claiming  as  devisee  under 
a  will,  his  solicitor  was  not  allowed  to  produce  the  will,  though  it  was  sug- 
gested that  it  related  also  to  personalty,  and  ought  therefore  to  be  deposited 
in  the  Eccles.  Court,  and  to  be  open  for  public  inspection. 

^  Herring  v.  Clobery,  1  Phill.  91,  96;  Cromack  v.  Heathcote,  2  B.  &  B.  4  ; 
Greenough  v.  Gaskell,  1  Myl.  &  K.  101.  Brougham,  C,  was  assisted  in  this 
last  decision  by  consultation  with  Ld.  Lyndhurst.  Tindal,  C.  J.,  and  Parke.  J., 
4  B.  &  Ad.  876;  and  the  case  is  mentioned  by  Ld.  Abinger,  as  one  in  which 
all  the  authorities  had  been  reviewed,  2  M.  &  W.  100.  See,  also,  Chant  v. 
Brown,  9  Hare,  790. 

•^  Pearse  v.  Pearse,  1  De  Gex  &  Sm.  25,  per  K.  Bruce,  V.-C. ;  Jenkins  v. 
Bushby,  35  L.  J.,  Ch.  820.  See  Bargaddie  Coal  Co.  v.  Wark,  3  Macq.  Sc.  Cas. 
H.  of  L.  468,  488,  etseq. 

*  Turquand  v.  Knight,  2  M.  &  W.  100,  per  Ld.  Abinger;  Harvey  v.  Clayton, 
2  Swanst.  221,  n.;  Anon.,  Skinn.  404,  per  Ld.  Holt.  But  here  it  is  necessary 
that  the  .solicitor  should  have  been  consulted  as  the  party's  own  legal  adviser, 
E.  V.  Farley,  2  C.  &  Kir.  313,  318.     See  post,  §  923,  ad  fin. 

*  Cromack  i'.  Heathcote,  2  B.  &  B.  4. 
«  Carpmael  i'.  Powis,  1  Phill.  687. 

^  Id.  692,  per  Ld.  Lyndhurst. 

(3651) 


784  PROFESSIONAL  COMMUNICATIONS  INADMISSIBLE.       [pART  II. 

adviser  cannot  be  asked  whether  the  conference  between  him  and 
his  client  was  for  a  lawful  or  an  unlawful  purpose,'  though,  if  from 
independent  evidence  it  should  clearly  appear  that  the  communi- 
cation was  made  by  the  client  for  a  criminal  purpose, — as,  for 
instance,  if  the  solicitor  was  questioned  as  to  the  most  skilful  mode 
of  effecting  a  fraud,  or  committing  any  other  indictable  offence,— it 
is  submitted  that,  on  the  broad  principles  of  penal  justice,  he  would 
be  bound  to  disclose  such  guilty  project."  Nay,  it  may  reasonably 
be  doubted  whether  the  existence  of  an  illegal  purpose  will  not  also 
prevent  the  privilege  from  attaching;  for  it  is  as  little  the  duty  of  a 
solicitor  to  advise  his  client  how  to  evade  the  law,  as  it  is  to  con- 
trive a  positive  fraud.^ 

§  913.  Where  the  professional  adviser  is  the  party  interrogated, 
it  is  quite  immaterial  whether  the  communication  relate  to  any 
litigation    commenced    or    anticipated;*    for,   as  Lord  Chancellor 

1  Doe  V.  Harris,  5  C.  &  P.  594,  per  Parke,  J. 

2  See  R.  V.  Farley,  2  C.  &  Kir.  313;  R.  v.  Avery,  8  C.  &  P.  596;  Follett 
V.  Jefferyes,  1  Sim.  N.  S.  17,  cited  post,  p.  800,  n.  5;  ]Morningtonr.  Mornington, 
2  Johns.  &  Hem.  697;  Charlton  v.  Coombes,  32  L.  J.,  Ch.  284;  4  Giff.  372,  S.  C, 
per  Stuart,  V.-C.  In  Annesley  i-.  Ld.  Anglesea,  17  How.  St.  Tr.  1229,  Serjt. 
Tisdall,  in  argument,  lays  down  the  rule  thus: — "If  the  witness  is  emplojed 
as  an  attorney  in  any  unlawful  or  Avicked  act,  his  duty  to  the  public  obliges 
him  to  disclose  it;  no  private  obligations  can  dispense  with  that  universal  one, 
which  lies  on  every  member  of  society,  to  discover  every  design  which  may  be 
formed,  contrary  to  the  laws  of  societ^^  to  destroy  the  public  welfare.  For  this 
rea.son,  I  apprehend  that  if  a  secret,  which  is  contrary  to  the  public  good,  such 
a.sa  design  to  commit  treaspn,  murder,  or  perjury,  comes  to  the  knowledge  of 
an  attorney',  even  in  a  cause  wherein  he  is  concerned,  the  obligation  to  the 
public  must  dispense  with  the  private  obligation  to  the  client."  Two  of  the 
learned  judges  who  tried  that  remarkable  case,  Bowes,  C.  B.,  and  Mounteney, 
B.,  expressed  the  same  sentiments,  see  pp.  1240 — 1243.  See,  also,  Gartside 
V.  Outram,  26  L.  J.,  Ch.  115,  per  Wood,  V.-C. ;  and  post,  §929.  The  Law,  as  stated 
in  the  text,  has  been  recognized  as  sound  by  the  Judges  of  Crim.  App.  in  R. 
V.  Cox  &  Railton,  decided  on  27th  June,  1884. 

^  Russell  V.  Jackson,  9  Hare,  392,  per  Turner,  V.-C,  who  observed: — "  I  am 
very  much  disposed  to  think  that  the  existence  of  an  illegal  purpose  would 
prevent  any  privilege  attaching  to  the  communications.  Where  a  solicitor  is 
party  to  a  fraud,  no  privilege  attaches  to  the  communications  with  him  upon 
the  subject,  because  the  contriving  of  a  fraud  is  no  part  of  his  duty  as  solicitor; 
and  I  tiiink  it  can  as  little  be  said  that  it  is  part  of  the  duty  of  a  solicitor  to 
advise  his  client  a.s  to  the  means  of  evading  the  law."  See,  also.  Kelly  v. 
Jackson,  13  Ir.  Eq.  R.  129.  R.  v.  Cox  &  Railton,  decided  by  Ct.  ofCrim.  App., 
27th  June,  1884. 

*  Ld.  Walsingham  v.  Goodricke,  3  Hare.  124;  Desborough  r.  Rawlins,  3  MyL 
&  Cr.  515;  Pearse  v.  Pearse,  1  De  Gex  &  Sm.  25,  per  K.  Bruce,  V.-C;  Sawyer 

(3652) 


CHAP.  XVI.]  WHERE  LEGAL  ADVISER  INTERROGATED.  785 

Brougham  observed,  in  a  case  of  high  authority,  "If '  the  privilege 
were  confined  to  communications  connected  with  suits  begun,  or 
intended,  or  expected,  or  apprehended,  no  one  could  safely  adopt 
such  precautions  as  might  eventually  render  any  proceedings 
successful,  or  all  proceedings  superfluous;"^  and  again,  "This 
protection  is  not  qualified  by  any  reference  to  proceedings  pending 
or  in  contemplation.  If,  touching  matters  that  come  within  the 
ordinary  scope  of  professional  employment,  legal  advisers  receive  a 
communication  in  their  professional  capacity,  either  from  a  client, 
or  on  his  account  and  for  his  benefit  in  the  transaction  of  his 
business, — or,  which  amounts  to  the  same  thing,  if  they  commit  to 
paper,  in  the  course  of  their  employment  on  his  behalf,  matters 
which  they  know  only  through  their  professional  relation  to  the 
client, — they  are  not  only  justified  in  withholding  such  matters, 
but  bound  to  withhold  them,  and  will  not  be  compelled  to  disclose 
the  information  or  produce  the  papers  in  any  coui't  of  law  or  equity, 
either  as  party  or  as  witness."  ^ 


§  914*  "  The  foundation  of  this  rule,"  adds  his  lordship,  "  is  ^  835 
not  on  account  of  any  particular  importance  which  the  law  attributes 
to  the  business  of  legal  professors,  or  any  particular  disposition  to 
afford  them  protection.  But  it  is  out  of  regard  to  the  interests  of 
justice,  which  cannot  be  upholden,  and  to  the  administration  of 
justice,  which  cannot  go  on,  without  the  aid  of  men  skilled  in 
jurisprudence,  in  the  practice  of  the  courts,  and  in  those  matters 
affecting  rights  and  obligations,  which  form  the  subject  of  all  judicial 
proceedings."  ^  If  such  communications  were  not  protected,  no 
man, — as  the  same  learned  judge  remarked  in  another  case, — would 


V.  Birchmore,  3  Myl.  &  K.  572;  Herring  r.  Clobery,  1  Phill.  91;  Jones  v. 
Pugh,  id.  96;  Greenough  v.  Gaskell,  1  Jlyl.  «&  K.  98;  Carpmael  v.  Powis, 
9  Beav.  16,  20,  per  Ld.  Langdale.  These  cases  overrule  Williams  v.  Mudie, 
1  C.  &  P.  158;  Ry.  &  M.  34,  S.  C. ;  Clark  v.  Clark,  1  M.  &  Rob.  3;  Broad 
V.  Pitt,  M.  &  M.  233;  3  C.  &  P.  518,  S.  C  ;  and  Wadsworth  v.  Hamshaw,  2 
B.  &  B.  5.  n. 

1  Gr.  Ev.  §§  240  and  237. 

==  Greenough  v.  Gaskell,  1  Myl.  &  K.  103. 

3  Id.  101,  102.  <  Gr.  Ev.  ?  238,  verbatim. 

^  Greenough    v.    Gaskell,  1   Myl.  &    K.  103  ;   quoted  with  approbation  in 
Russell  V.  Jackson,  9  Hare,  391,  per  Turner,  V.-C. 

(3653) 


786  WHERE  LEGAL  ADVISER  INTERROGATED.  [PAKT  II. 

dare  to  consult  a  professional  adviser,  with  a  view  to  his  defence,  or 
to  the  enforcement  of  his  rights;  and  no  man  could  safely  come 
into  a  court,  either  to  obtain  redress,  or  to  defend  himself.' 


§  915.  The  rigid  enforcement  of  this  rule  no  doubt  operates  ?  836 
occasionally  to  the  exclusion  of  truth;  but  if  any  law-reformer 
feels  inclined  to  condemn  the  rule  on  this  ground,  he  will  do  well 
to  reflect  on  the  eloquent  language  of  the  late  Lord  Justice  Knight 
Bruce,  who,  while  discussing  this  subject  on  one  occasion,  felici- 
tously observed: — "Truth,  like  all  other  good  things,  may  be  loved 
unwisely, — may  be  pursued  too  keenly, — may  cost  too  much.  And 
surely  the  meanness  and  the  mischief  of  prying  into  a  man's  confi- 
dential consultations  with  his  legal  adviser,  the  general  evil  of 
infusing  reserve  and  dissimulation,  uneasiness,  suspicion,  and  fear, 
into  those  communications  which  must  take  place,  and  which, 
unless  in  a  condition  of  perfect  security,  must  take  place  uselessly 
or  worse,  are  too  great  a  price  to  pay  for  truth  itself."  ' 

2  837 
§  916.  Such  being  the  reasons  on  which   the  rule  is  founded,  its    ^ 

application  has  been  confined, — with  perhaps  questionable  strict- 


1  Bolton  V.  Corp.  of  Liverpool,  1  Myl.  &  K.  94,  95.  "  This  rule  seems  to  be 
correlative  with  that  which  governs  the  summary  jurisdiction  of  the  courts 
over  attorneys.  In  Ex  parte  Aitken,  4  B.  &  A.  49,  that  rule  is  laid  down 
thus: — 'Where  an  attorney  is  employed  in  a  matter  wholly  unconnected  with 
his  professional  character,  the  court  will  not  interfere  in  a  summary  way  to 
compel  him  to  execute  faithfully  the  trust  reposed  in  him.  But  where  the 
employment  is  so  connected  with  his  professional  character  as  to  afford  a  pre- 
sumption that  his  character  formed  the  ground  of  his  employment  by  the 
client,  then  the  court  will  exercise  this  jurisdiction.'  See,  also,  Ex  parte 
Yeatman,  4  Dowl.  309.  So  where  the  communication  made  relates  to  a  cir- 
cumstance so  connected  with  the  employment  as  an  attorney,  that  the 
character  formed  the  ground  of  the  communication,  it  is  privileged  from  dis- 
closure." Per  Alderson,  B.,  in  Turquand  r.  Knight,  2  M.  &  W.  101.  The 
Roman  law  rejected  the  evidence  of  the  procurator  and  the  advocate,  in 
nearly  the  same  cases  as  the  common  law;  but  not  for  the  same  reasons; 
the  latter  regarding  the  general  interests  of  the  community,  as  stated  in  the 
text,  while  the  former  seems  to  have  considered  such  testimony  as  not 
credible,  because  of  the  identity  of  the  legal  adviser's  interest,  opinions,  and 
prejudices  with  those  of  his  client.  1  Masc.  de  Prob.,  Concl.  66  ;  vol.  3, 
Concl.  1239;  Farin.  Op.,  Tom.  2,  Tit.  6,  Qua;st.  60,  Illat.  5,  6. 

2  Pearse  v.  Pearse,  1  De  Gex  &  Sm.  28,  29. 

(3654) 


CH.iP.  XVI.]       CLERGYMEN  AND  MEDICAL  MEN  NOT  PRIVILEGED.        7S7 

ness, — to  communications  whicb  pass  between  a  client  and  his  legal 
adviser;  and  the  protection  has  not  been  permitted  to  extend  to 
any  matters  communicated  to  other  persons,  though  such  commii- 
nications  were  made  under  the  terms  of  the  closest  secrecy.'  Thus,^ 
clergymen,^  and  medical  men  *  are  bound  to  disclose  any  information, 
which  by  acting  in  their  professional  character  they  have  confiden- 

1  lu  Wheeler  v.  Le  Marchant,  L.  R.,  17  Ch.  D.  681;  and  50^7^7  CliT  795^ 
Jessel,  M.  R.,  thus  expounded  the  law: — "  The  principle  protecting  confidential 
communications,"  said  his  lordship,  "' is  of  a  very  limited  character.  It  does 
not  protect  all  confidential  communications  which  a  man  must  necessarily 
make  in  order  to  obtain  advice,  even  when  needed  for  the  protection  of  his 
life,  or  of  his  honour,  or  of  his  fortune.  There  are  many  communications 
which,  though  absolutely  necessary  because  without  them  the  ordinary  busi- 
ness of  life  cannot  be  carried  on,  still  are  not  privileged.  The  communica- 
tions made  to  a  medical  man,  whose  advice  is  sought  by  a  patient  with 
respect  to  the  probable  origin  of  the  di-sease  as  tr)  which  he  is  consulted,  and 
which  must  necessarily  be  made  in  order  to  enable  the  medical  man  to  advise 
or  prescribe  for  the  patient,  are  not  protected.  Communications  made  to 
a  priest  in  the  confessional  on  matters  perhaps  considered  by  the  penitent  to 
be  more  important  even  than  his  life  or  his  fortune,  are  not  protected. 
Communications  made  to  a  friend  with  respect  to  matters  of  the  most , 
delicate  nature,  on  which  advice  is  sought  with  respect  to  a  man's  honour  or 
reputation,  are  not  protected.  Therefv)re  it  must  not  be  supposed  that  there 
is  any  principle  which  says  that  every  confidential  communication,  wliieh  it 
is  necessary  to  make  in  order  to  carry  on  the  ordinary  business  of  life,  is  pro- 
tected. The  protection  is  of  a  very  limited  character,  and  in  this  country  is 
restricted  to  the  obtaining  the  assistance  of  lawyers,  as  regards  the  conduct 
of  litigation  or  the  rights  to  property.  It  has  never  gone  beyond  the  obtain- 
ing legal  advice  and  assistance,  and  all  things  reasonably  necessary  in  the 
shape  of  communication  to  the  legal  advisei'S  are  protected  from  production 
or  discovery,  in  order  that  that  legal  advice  may  be  obtained  safely  and 
sufiiciently." 

'^  Gr.  Ev.  I  218,  in  part. 

^  R.  V.  Gilham,  1  Moo.  C.  C.  186. 

*  Duch.  of  Kingston's  case,  11  Harg.  St.  Tr.  213;  20  How.  St.  Tr.  572,  S.  C; 
R.  V.  Gibbons,  1  C.  &  P.  97;  Broad  v.  Pitt,  3  id.  519,  per  Best,  C.  J.;  M.  &  M. 
234,  S.  C.  In  Wilson  v.  Rastall,  4  T.  R.  760,  Buller,  J.,  much  regretted  that 
the  law  of  privilege  was  not  extended  to  those  cases,  in  which  medical  persons 
acquired  information  by  attending  in  their  professional  characters;  and,  in 
Greenough  v.  Gaskell,  1  MyL  &  K.  103,  Ld.  Brougham,  while  stating  that  the 
rule  was  limited  to  legal  advi.sers,  observed,  that  "  certainly  it  may  not  be  very 
easy  to  discover  w^hy  a  like  privilege  has  been  refused  to  others,  especiallj'  to 
medical  advisers."  By  the  N.  York  Civ.  Code,  ^  1710,  r.  4,  "a  licensed 
physician  or  surgeon  cannot,  without  the  consent  of  his  patient,  be  examined, 
in  a  civil  action,  as  to  any  information  acquired  in  attending  the  patient, 
whicli  was  necessary  to  enable  him  to  prescribe  or  act  for  the  ])atient."  A 
somewhat  similar  statute  exists  in  Missouri,  Rev.  Code  of  1833,  p.  623, 
111. 

29  LAW  OF  EVID. — V.  II.  (3655) 


788  CONFESSIONS  MADE  TO  THE  CLERGY.  [PART  II. 

tially  acquired;  and  clerks,'  bankers,"  stewards,^  confidential 
friends,*  pursuivants  of  the  Heralds'  College,^  and,  perhaps,  even 
licensed  conveyancers,*  are  equally  obliged  to  reveal  what  has  been 
imparted  to  them  in  confidence,  except  as  to  matters  which  the 
principal  himself  would  not  be  compelled  to  disclose,  such  as  his 
title  deeds  and  private  papers,  in  a  case  in  which  he  is  not  a  party. 


§  917.'  The  propriety  of  extending  the  privilege  to  communi- 
cations made  to  clergymen  in  reference  to  criminal  conduct,  has 
been  strongly  urged,  on  the  ground  that  evil-doers  should  be 
enabled  with  safety  to  disburtben  their  guilty  consciences,  and  by 
spiritual  instruction  and  discipline  to  seek  pardon  and  relief.  The 
law  of  Papal  Rome  has  adopted  this  principle  in  its  fullest  extent, 
not  only, — as  already  intimated,^ — by  excepting  such  confessions 
from  the  general  rules  of  evidence,  but  by  punishing  the  priest  who 
reveals  them.  It  has  even  gone  further;  for  Mascardus, — after 
observing  that,  in  general,  persons  coming  to  the  knowledge  of  facts 
under  an  oath  of  secrecy  are  compellable  as  witnesses  to  disclose 
them, — states  that  confessions  to  a  priest  are  not  within  the  operation 
of  the  rule,  since  they  are  made  not  so  much  to  the  priest  as  to  the 
Deity  whom  he  represents;  and  he  thence  draws  the  Jesuitical  con- 
clusion that  the  priest,  when  appearing  as  a  witness  in  his  private 
character,  may  lawfully  swear  that  he  knows  nothing  of  the  subject: 
"  Hoc  tamen  restringe,  non  posse  procedere  in  sacerdote  producto 
in  testem  contra  reura  criminis,  quando  in  confessione  sacramentali 
fuit  aliquid  sihi  dictum,  quia  potest  dicere,  se  nihil  scire  ex  eo;  quod 
illud,  quod  scit,  scit  ut  Deus,  et  ut  Deus  non  produciter  in  testem. 


1  Lee  V.  Birrell,  3  Camp.  337;  Webb  v.  Smith,  1  C.  &  P.  337. 

2  Loyd.  V.  Freshfield,  2  C.  &  P.  325,  per  Abbott,  C.  J. 

^Vaillantr.  Dodemead,  2  Atk.  524;  4  T.  R.  759,  per  Buller,  J.;  Ld.  Fal- 
mouth V.  JIoss,  11  Price,  455. 

M  T.  R.  758,  per  Ld.  Kenyon;  Hoffman  v.  Smith,  1  Caines,  157,  159. 

^Slade  V.  Tucker,  L.  R.,  14  Ch.  D.  824,  per  Jessel,  M.  R.;  49  L.  J.,  Ch. 
644,  S.  C.  There  the  pursuivant  had  been  employed  in  the  conduct  of  a  pro- 
test against  a  pedigree  sought  to  be  enrolled  in  the  Heralds'  College. 

«  See  per  Parke,  B.,  in  Turquand  v.  Knight,  2  M.  &  W.  100. 

'  Gr.  Ev.  I  247,  in  great  part. 

8  Ante,  §  879,  n.  \ 

(3656) 


CHAP.  XVI.]  COMMUNICATIONS  MADE  TO  THE  CLERGY.  789 

sed  lit  homo,  et  tanquam  homo  ignorat  illud  super  quo  i^roducitur.''''^ 
In  Scotland,  where  a  prisoner  in  custody  and  preparing  for  his  trial 
has  confessed  his  crimes  to  a  clergyman,  in  order  to  obtain  spiritual 
advice  and  comfort,  such  confession  is  privileged;  but  this  privilege 
is  not  carried  so  far  as  to  include  communications  made  confiden- 
tially to  clergymen  in  the  ordinary  course  of  their  duty,'  Though 
the  law  of  England  encourages  the  penitent  to  confess  his  sins  "  for 
the  unburthening  of  his  conscience,  and  to  receive  spiritual  conso- 
lation and  ease  of  mind;"  yet  the  minister,  to  whom  the  confession 
is  made,  is  merely  excused  from  presenting  the  offender  to  the  civil 
magistrate,  and  enjoined  not  to  reveal  the  matter  confessed,  "  under 
pain  of  irregularity."  ^  In  all  other  respects  he  is  left  to  the  full 
operation  of  the  rules  of  the  common  law,  which  recognise  no  dis- 
tinction between  clergymen  and  laymen,  but  provide  that  all  con- 
fessions and  other  matters,  not  confided  to  legal  counsel,  must  be 
disclosed  when  required  for  the  purposes  of  justice.*  Neither  peni- 
tential confessions  made  to  the  minister  or  to  members  of  the  party's 
own  Church,  nor  even  secrets  confided  to  a  Roman  Catholic  priest  in 
the  course  of  confession,  are  regarded  as  privileged  communications.^ 


'  1  Mas.  de  Prob.,  Qusest.  v.  n.  51;  id.  Concl.  377.  Vide  Farin.  Op.,  Tit.  8, 
Qusest.  78,  n.  73. 

2  Tait,  Ev.  386,  387;  Alison,  Pract.  of  Cr.  L.  586;  2  Dickson,  Ev.  937— 
939. 

3  Const.  &  Can.  1  J.  1,  Can.  cxiii.;  2  Gibson,  Cod.  p.  963. 

*  E.  V.  Gilham,  1  Moo.  C.  C.  186. 

*  Butler  V.  Moore,  M'Nally,  Ev.  253—255;  Anon.,  Skin.  404,  per  Holt.  C.  J.; 
Du  Barre  r.  Livette,  Pea.  E.  77;  Com.  v.  Drake,  15  Mass.  161.  By  the  N. 
York  Civ.  Code,  §  1710,  r.  3,  "  A  clergyman  or  prie.st  cannot,  without  the 
consent  of  the  per.son  making  the  confes.sion,  be  examined  as  to  any  confes- 
sion made  to  him  in  his  professional  character,  in  the  course  of  discipline 
enjoined  by  the  Church  to  which  he  belongs."  A  somewhat  similar  statute 
exists  in  Missouri;  Eev.  St.  of  1835,  p.  623,  I  16.  In  Broad  v.  Pitt,  3  C.  & 
P.  519;  M.  &  M.  2.34,  S.  C,  Best,  C.  J.,  said,  that  he,  for  one,  would  never 
compel  a  clergyman  to  disclose  communications  made  to  him  by  a  prisoner; 
but  that  if  he  chose  to  disclo.se  them,  he  would  receive  them  in  evidence.  In 
E.  V.  Griffin,  6  Cox,  219,  Alder.son,  B.,  is  reported  to  have  gone  further,  and 
to  have  expressed  an  opinion  that  communications  made  by  a  prisoner  to  a 
clergyman  ought  not  to  be  di.sclosed.  See,  also,  E.  r.  Hay,  2  Post.  &  Fin. 
4;  Joy  on  Conf.  49 — 58;  Jer.  Taylor's  Sermon  on  the  Anniversary  of  Gun- 
powder Treason,  6  vol.  of  his  Works,  pp.  614 — 622,  ed.  1828;  and  a  very 
learned  pamphlet  by  the  late  Mr.  Badeley  on  the  Privilege  of  Eeligious  Con- 
fessions in  English  Courts  of  Justice,  publ.  in  1865. 

(3657) 


790  TITLE-DEEDS — TRUSTEES — MORTGAGES.  [PART  II. 

§  918.  Although  the  priviloge,  in  its  full  extent,  applies  only  to  g  839 
the  communications  which  pass  between  a  client  and  his  legal 
adviser,'  yet,  with  respect  to  the  production  of  title-deeds,  the 
protection  has  been  held  applicable  to  the  case  of  trustees  and 
mortgagees,  who  cannot  be  compelled  either  to  produce  the  deeds  of 
the  cestuis  que  trust,  or  mortgagors,  or  to  give  parol  evidenco  of 
their  contents."  It  may  here  be  laid  down  as  a  general  proposition, 
that,  whenever  a  party  is  justified  in  refusing  to  produce  an  instru 
ment,  he  cannot  be  forced  to  disclose  its  contents;  and  although 
some  few  dicta,  or  even  decisions,^  to  the  contrary  may  be  found, 
the  rule  as  above  stated  may  now  be  considered  as  established. 
To  adopt  an  observation  of  Mr.  Baron  Alderson,*  "It  would  be 
perfectly  illusory  for  the  law  to  say  that  a  party  is  justified  in  not 
producing  a  deed,  but  that  he  is  compellable  to  give  parol  evidence 
of  its  contents;  that  would  give  him,  or  rather  his  client  through 
him,  merely  an  illusory  protection,  if  he  happens  to  know  the 
contents  of  the  deed,  and  would  be  only  a  roundabout  way  of  getting 
from  every  man  an  opportunity  of  knowing  the  defects  there  may 
be  in  the  deeds  and  titles  of  his  estate." 


§  919.  The  protection  afforded  to  professional  confidence  applies  ?  840 
with  equal  force,  though  the  client  be  in  no  shape  before  the 
court ;°  and  although  the  rule  which  excludes  hearsay  prevents 
this  question  from  often  arising  with  respect  to  mere  oral  communi- 
cations, it  has  often  been  discussed  on  occasions  when  a  solicitor 
has  been  called  upon,  either  by  subpoena  duces  tecum  or  otherwise, 
to  produce  a  document  with  which  he  has  been  confidentially 
intrusted  by  some  stranger  to  the  suit.  In  such  a  case,  if  the 
solicitor  claims  the  privilege  of  the  client,  he  will  be  protected  not 


1  Thomas  v.  Rawlings,  27  Beav.  140. 

2  Davies  v.  Waters,  9  M.  &  W.  608;  R.  v.  Upper  Boddington,  8  D.  &  R.  726; 
Chichester  v.  M.  of  Donegal,  39  L.  J.,  Ch.  694,  per  Giffard,  L.  J.  See  Few  v. 
Guppy,  10  Beav.  281,  n.  &;  13  Beav.  457,  S.  C.     Also,  ante,  ?  458. 

'  See  Cocks  v.  Nash,  6  C.  &  P.  154,  per  Gurney,  B. ;  Marston  v.  Downes, 
1  A.  «&  E.  31;  3  N.  &  M.  861,  S.  C,  observed  upon  by  Rolfe,  B.,  in  9  M.  &  W. 
613,  614. 

*  Davies  v.  Waters,  9  M.  &  W.  612. 

^  R.  I'.  Withers,  2  Camp.  578,  per  Ld.  Ellenborough. 

(3658) 


CHAP.  XVI.]      SOLICITOR  WITHHOLDING  CLIENT'S  PAPERS.  791 

only  from  producing  the  deed  or  other  paper,  but  from  answering 
any  question  with  respect  to  its  nature; '  and  although  on  several 
occasions  the  court  has  inspected  the  document,  and  pronounced 
upon  its  admissibility,  according  as  its  production  has  appeared  to 
be  prejudicial  or  not  to  the  client,^  it  seems  to  be  now  settled,  that, 
in  strict  law,  the  judge  ought  not  to  look  at  the  writing  to  see 
■whether  it  is  a  document  which  may  properly  be  withheld.^  The 
same  rule  applies  where  the  documents  called  for  are  in  the  hands 
of  solicitors  for  the  trustees  of  bankrupts,*  though  it  was  at  one 
time  thought  that  their  production  was  a  matter  of  public  duty.^ 
In  all  these  cases,  if  the  client  or  principal  would  have  been  entitled, 
had  he  been  called  as  a  witness,  to  withhold  the  document,  the 
solicitor,  agent,  or  steward  cannot  be  compelled,  though  he  will  be 
permitted,  to  produce  it;"  but  if  both  the  client  and  the  solicitor, 
or  the  principal  and  the  agent,  concur  in  refusing  to  produce  the 
document,  the  party  calling  for  it  may,  in  such  an  event,  give 
secondary  evidence  of  its  contents.' 


§  920.^  This    protection,    though    confined    to   communications    x  §4^ 
between  a  client  and  his  legal  adviser,'  extends  to  all  the  neces- 
sary organs    by  which    such    communications    are    effected  ;    and 
therefore  an  interpreter,^^  or  an  intermediate  agent,^^  is  under  the 

'  Volant  V.  Soyer,  13  Com.  B.  231. 

2  1  Ph.  Ev.  175;  Doe  v.  Langdon,  12  Q.  B.  711;  Copeland  v.  Watts,  1 
Stark.  R.  95;  Harris  v.  Hill,  D.  &  R.,  N.  P.  R.  17,  3  Stark,  R.  140,  S.  C; 
Ditcher  v.  Kenrick,  1  C.  &  P.  161;  Doe  v.  Thomas,  9  B.  &  C.  288:  4  M.  &  R. 
218,  S.  C.  ^  Volant  v.  Soyer,  13  Com.  B.  231. 

*  Laing  v.  Barclay,  3  Stark.  R.  42;  Bateson  v.  Hartsink,  4  Esp.  43;  Cohen 
t".  Templar,  2  Stark.  R.  260;  Hawkins  v.  Howard,  Ry.  &  M.  64;  1  C.  &  P. 
222,  S.  C;  Corseu  v.  Dubois,  Holt,  N.  P.  R.  239;  Bull  v.  Loveland,  10  Pick. 
9,  14. 

*  Pearson  v.  Fletcher,  5  Esp.  80,  per  Ld.  Ellenborough. 
«  Hibberd  v.  Knight,  2  Ex.  R.  11.     See  ante,  'i  458. 

^  Ditcher  v.  Kenrick,  1  C.  &  P.  161;  R.  v.  Hunter,  3  C.  &  P.  591.  As  to 
the  cases  where  a  witness  may  refuse  to  produce  his  deeds,  or  to  disclose  their 
contents,  see  ante,  §§  457 — 460. 

*  Gr.  Ev.  I  239,  in  part.  »  Thomas  v.  Rawlings,  27  Beav.  140. 

"  Du  Barre  v.  Livette,  Pea.  R.  77,  explained  in  4  T.  R.  756;  Jackson  v. 
French,  3  Wend.  337;  Andrews  v.  Solomon,  1  Pet.  C.  C.  R.  356;  Parker  v. 
Carter,  4  Munf.  273. 

"  Bustros  V.  White,  L.  R.,  1  Q.  B.  D.  423,  427,  per  Jessel,  M.  R.;  Bunbury 

(3659) 


792  INTERPRETERS,  SOLICITORS'  AGENTS,  PRIVILEGED.       [pART  II. 

same  obligation  as  the  legal  adviser  himself  ;  and  if  the  legal 
adviser  has  communicated  with  such  person,  he  will  be  as  much 
bound  to  silence,  as  if  he  had  communicated  directly  with  his 
client.'  The  rule  also  extends  to  a  solicifor^s  town  or  local 
agent'  (who  is  considered  as  standing  in  precisely  the  same  situa- 
tion as  the  solicitor),  to  a  Scotch  solicitor,  and  to  a  Scotch  law 
agent  practising  in  England;'^  and  it  has  been  held  applicable 
to  a  case  submitted,  after  the  institution  of  the  suit,  to  a  foreign 
counsel,  and  to  his  opinion  thereon.*  Formerly  it  was  thought 
that  a  barrister's  or  a  solicitor's  clerk  was  not  within  the  reason 
and  exigency  of  the  rule;  but  as  the  principals,  being  unable  to 
transact  all  their  business  in  person,  are  under  the  necessity  of 
employing  clerks,  it  has  since  been  held,  that  such  clerks  cannot 
be  permitted  to  disclose  facts  coming  to  their  knowledge  in  the 
course  of  employment,  unless  the  barrister  or  solicitor  himself 
might  have  been  interrogated  respecting  them.^  So,  where  a 
plaintiff,  at  the  instance  of  his  solicitors,  sent  out  a  gentleman  to 
India,  for  the  express  purpose  of  acting  as  the  solicitor's  agent  in 
the  collection  of  evidence  respecting  a  pending  suit,  letters  written 
by  the  agent  either  to  the  plaintiff  himself  or  to  his  solicitors  on 
the  subject  of  the  evidence,  have  been  regarded  by  the  court  as 
confidential  communications.^ 


V.  Bunbury,  2  Beav.  173;  Walker  ?;.  Wildman,  6  Madd.  47;  Hooper  v.  Gumm, 
2  Johns.  &  Hem.  602;  Churton  v.  Frewen,  2  Drew.  &  Sm.  390;  Jenkins  v. 
Bushby,  35  L.  J.,  Ch.  820;  Reid  v.  Langlois,  1  M.  &  Gord.  627,  638,  639,  per 
Ld.  Cottenham;  2  Hall  &  T.  59,  73,  74,  S.  C.  See  Doe  v.  Jauncey,  8  C.  &  P. 
101. 

1  Carpmael  v.  Fowls,  9  Beav.  16,  20,  21,  per  Ld.  Langdale;  S.  C  1  Phill. 
692,  693,  perLd.  Lyndlmrst,  recognising  Walker  v.  Wildman,  6  Madd.  47. 

2  Parkins  v.  Hawkshaw,  2  Stark.  R.  239,  per  Holroyd,  J.;  Tait,  Ev.  385; 
Goodall  V.  Little,  20  L.  J.,  Ch.  132;  1  Sim.  N.  S.  155,  S.  C. 

^  Lawrence  v.  Campbell.  4  Drew.  485. 

**  Bunbury  v.  Bunbury,  2  Beav.  173. 

^  Taylor  v.  Forster,  2  C.  &  P.  195,  per  Best,  C.  J.,  cited  with  approbation  in 
12  Pick.  93;  Foote  v.  Hayne,  1  C.  &  P.  545;  Ry.  &  M.  165,  S.  C,  per  Abl)ott, 
C.  J.;  Chant  v.  Brown,  9  Hare,  790;  Bowman  v.  Norton,  5  C.  &  P.  177,  per 
Tindal  C.  J. ;  R.  v.  Upper  Boddington,  8  D.  &  R.  726,  per  Bayley,  J. ;  Mills 
V.  Oddy,  6  C.  &  P.  731 ;  Jackson  v.  French,  3  Wend.  337. 

«  Steele  v.  Stewart,  1  Phill.  471  ;  Cossey  Lond.  Bright.  &c.  Ry.  Co.,  5 
Law  Rep.,  C.  P.  146:  39  L.  J.,  C.  P.  174,  S.  C. ;  Lafone  v.  Falkland  Islands 
Co.,   27   L.   J.,  Ch.   25,  per   Wood,   V.-C;   4   K.  &  J.  34,   S.   C;   Hooper  v. 

(3660) 


CHAP.  XVI.]        party's  own  agents  not  privileged.  793 

§  921.  The  rule  of  protection,  however,  will  not  be  carried  to  §  842 
any  further  extent;  and  therefore,  where  the  directors  of  a  joint- 
stock  company  sent  agents  abroad  to  assist  in  winding  up  the 
afPairs  of  the  company,  a  correspondence  between  the  directors 
and  the  agents  relative  to  legal  proceedings,  which  had  been  com- 
menced against  the  directors  by  certain  creditors  of  the  company, 
was  held  not  to  be  privileged,  though  many  of  the  letters  had 
been  written  for  the  purpose  of  aiding  the  directors  in  their 
defence,  and  of  being  submitted  to  their  solicitors.*  Indeed,  it 
may  be  laid  down  generally,  in  the  language  of  Lord  Cranworth, 
that  "  there  is  no  protection  as  to  letters  between  parties  them- 
selves, or  from  a  stranger  to  a  party,  merely  because  such  letters 
may  have  been  -written  in  order  to  enable  the  person  to  whom 
they  were  addressed  to  communicate  them  in  professional  confi- 
dence to  his  solicitor." 


§  922.  As  the  privilege  is  established,  not  for  the  benefit  of  the  ?  843 
solicitor,  but  for  the  protection  of  the  client,^  it  would  seem  to 
extend  to  an  executor  in  regard  to  papers  coming  to  his  hands  as 
the  personal  representative  of  the  solicitor.*  If,  however,  a 
solicitor,  in  violation  of  his  duty,  should  voluntarily  communicate 
to  a  stranger  the  contents  of  an  instrument  with  which  he  was 
confidentially  intrusted,  or  should  permit  him  to  take  a  copy,  the 
secondary    evidence    so    obtained   would,  it    seems,  be  admissible. 


Gumm,  2  Johns.  &  Hem.  602;  Walsham   v.   Stainton,   2  Hem.  &  M.  1 ;  Eoss- 
V.  Gibbs,  8  Law  Rep.,  Eq.  522;  39  L.  J.,   Ch.   61,  S.   C;  Bullock  v.  Corry,  L. 
R.,  3  Q.  B.  J).  356;  47  L.  J.,  Q.  B.  352,  S.  C,  nom.  Bullock  v.  Corrie. 

1  Glyn  V.  Caulfield,  3  M.  &  Gord.  463,  473—475,  per  Ld.  Truro;  Anderson 
V,  British  Bk.  of  Columbia,  45  L.  J..  Ch.  449;  L.  R.,  2  Ch.  D.  644,  S.  C. 
See  Baker  v.  Lond.  &  S.-W.  Ry.  Co.,  37  L.  J.,  Q.  B.  53;  3  LaAV  Rep.,  Q.  B. 
91:  8  B.  &  S.  645,  S.  C.     See  post,  ?  1795. 

^  Goodall  V.  Little,  1  Sim.  N.  S.  155;  recognised  by  Ld.  Truro  in  Glyn  v. 
Cauiaeld,  3  M.  &  Gord.  474;  and  in  Betts  v.  Menzies,  26  L.  J.,  Ch.  528,  per 
Wood,  V.-C.  See  also  Smith  v.  Daniell,  44  L.  J.,  Ch.  189,  -where  an  opinion, 
which  had  been  given  confidentially  and  as  a  friend  by  Ld.  Westbury  on  a 
case  submitted  to  him,  was  ordered  to  be  produced.  But  see  Jenkins  v. 
Bushby,  35  L.  J.,  Ch.  820;  and  Hamilton  v.  Nott,  42  L.  J.,  Ch.  512,  per 
Malins,  V.-C;  16  Law  Rep.,  Eq.  112,  S.  C. 

=•  Herring  v.  Clo1)ery,  1   Phill.  96,  per  Ld.  Lyndhurst;  B.  N.  T.  284,  a. 

*  Feuwick  v.  Reed,  1  Meriv.  114,  120,  arg. 

(3661) 


794  SOLICITOR  MUST  BE  ACTING  AS  LEGAL  ADVISER.         [PAET  II. 

provided  that  notice  to  produce  the  origiual  were  duly  given,  and 
the  production  were  resisted  on  the  ground  of  privilege.'  Indeed/ 
it  hds  more  than  once  been  laid  down,  that  the  mere  fact  that 
papers  and  other  subjects  of  evidence  have  been  illegally  taken 
from  the  possession  of  the  party  against  whom  they  are  offered, 
or  otherwise  unlawfully  obtained,  constitutes  no  valid  objection  to 
their  admissibility,  provided  they  be  pertinent  to  the  issue.  For 
the  court  will  not  notice  whether  they  were  obtained  lawfully  or 
imlawf  ally,  nor  will  it  raise  an  issue  to  determine  that  question.^ 

§  923.  In  order  to  protect  communications,  they  must  have  §  844 
been  made  to  the  legal  adviser,  while  he  was  acting,  or  at  least 
while  he  was  considered  by  the  client  as  acting,*  in  that  capacity. 
The  rule,^  however,  does  not  require  any  regular  retainer,  or  any 
particular  form  of  application  or  engagement,  or  the  payment  of 
any  fees;  it  is  enough  if  the  legal  adviser  be,  in  any  way,  con- 
sulted in  his  professional  character."'  It  would  also  seem  that  if  a 
person  be  consulted  confidentially,  under  the  erroneous  supposi- 
tion that  he  is  a  lawyer,  he  cannot  be  compelled  to  disclose  the 
matters  communicated.'  But  where  a  prisoner  in  custody  on  a 
charge  of  forgery  wrote  to  a  friend,  requesting  him  "  to  ask  Mr.  G. 
or  any  other  attorney  "  a  question  respecting  the  punishment  of 
forgery,  the  letter  was  admitted  in  evidence,  on  the  ground  that  it 


1  Cleave  I'.  Jones,  21  L.  J.,  Ex.  106,  per  Parke,  B.;  Lloyd  v.  Mostyn,  10 
M.  &  W.  481,  482,  per  id.,  questioning  the  contrary  decision  of  Bayley,  J.,  in 

-Fisher  r.  Heming,  cited  1  Ph.  Ev.  170.  In  Lloyd  v.  Mostyn,  Parke,  B., 
likened  the  case  to  that  of  an  instrument  being  stolen,  and  a  correct  copy 
taken,  and  asked  whether  it  would  not  be  reasonable  to  admit  such  copy  ? 
If  the  client  sustains  any  injury  from  such  improper  disclosure  being 
made,  an  action  will  lie  against  the  solicitor.  Taylor  v.  Blacklow,  3  Biug. 
N.  C.  235. 

2  Gr.  Ev.  I  254a,  in  great  part. 

^  Legatt  V.  Tollervey,  14  East,  301;  Jordan  v.  Lewis,  id.  305,  n. ;  Doe  r. 
Date,  3  Q.  B.  619;  Com.  v.  Dana,  2  Mete.  329,  337. 

*  Smith  V.  Fell,  2  Curt.  667.  There  a  communication  was  held  to  be 
privileged,  which  was  made  Ijy  a  party  to  a  solicitor,  under  the  impression 
that  the  latter  acceded  to  a  request  to  act  as  his  legal  adviser. 

^  Gr.  Ev.  I  241,  in  part. 

6  Foster  v.  Hall,  12  Pick.  89.     See,  also.  Beau  v.  Quimby,  5  New  Hamps.  94. 

'  Calleyi).  Richards,  19  Beav.  401,  404,  per  Komilly,  M.  R.,  questioning 
Fountain  v.  Young,  6  Esp.  113,  per  Sir  J.  Mansfield. 

(3662) 


CHAP.  XVI.]    RULE  OF  PROTECTION  WHEN  CLIENT  INTERROGATED.      795 

did  not  appear  that  the  relation  of  attorney  and  client  ever  sub- 
sisted between  Mr.  G.  and  the  prisoner.'  So,  if  a  party  were  to 
go  to  a  solicitor  to  discount  a  forged  note,  or  to  raise  money  on 
a  forged  will,  what  passed  at  the  interview  would  of  course  not  be 
pi-ivileged,  unless,  perhaps,  in  the  event  of  the  solicitor  being  con- 
sulted as  the  party's  own  lawyer." 


§  924  The  question  of  privileged  communications  has  hitherto  I  845 
been  considered  with  respect  to  cases  in  which  the  legal  adviser 
is  called  as  a  witness  ;  but  although  the  privilege  is,  as  before 
observed,  that  of  the  client,  and  not  that  of  the  professional  adviser, 
the  rule  of  protection  was  for  many  years  laid  down  in  less 
broad  terms,  where  the  client  himself  was  the  x>arty  interrogated} 
It  was  indeed  long  since  established,  that,  in  that  event,  all  com- 
munications between  the  solicitor  and  client,  whether  pending 
and  with  reference  to  litigation,  or  made  before  litigation  and 
with  reference  thereto,  or  made  after  the  dispute  between  the 
parties  followed  by  litigation,  though  not  in  contemplation  of,  or 
with  reference  to,  that  litigation,  were  protected  ;  as  also  were 
communications  made  respecting  the  subject-matter  in  question, 
pending,  or  in  contemplation  of,  litigation  on  the  same  subject 
with  other  persons,  with  the  view  of  asserting  the  same  right.^ 
If,  however,  communications  passed  between  a  client  and  solicitor 
before  any  dispute  had  arisen  between  the  client  and  his  opponent, 
the  opponent  could  compel  the  client  by  a  bill  in  equity  to  disclose 
these  communications,  although  they  related  to  the  matters  which 

1  E.  V.  Brewer,  6  C.  &  P.  363,  per  Park,  J. 

2  E.  V.  Farley,  2  C.  &  Kir.  313,  317,  318.     See  ante,  I  912;  post,  I  929. 
^  See  Maccann  v.  Maccann,  3  Swab.  &  Trist.  142,  per  Cresswell,  J.  O. 

*  Holmes  V.  Baddeley,  1  Phill.  476;  per  Wigram,  V.-C,  in  Ld.  Walsingham 
V.  Goodricke,  3  Hare,  124,  125,  citing  Bolton  v.  Corp.  of  Liverpool,  3  Sim.  467; 
1  Myl.  &  K.  88,  S.  C;  Hughes  v.  Biddulph,  4  Euss.  190;  Goodall  v.  Little, 
1  Sim.  N.  S.  155;  Thompson  v.  Falk,  1  Drew.  21;  Vent  v.  Pacey,  4  Euss.  193; 
Clagett  V.  Phillips,  2  Y.  &  C,  Ch.  E.  82;  Combe  v.  Corp.  of  London,  1  id.  631. 
See,  also,  Woods  v.  Woods,  4  Hare,  83;  Eeece  v.  Trye,  9  Beav.  316;  Adams 
V.  Barry,  2  Y.  &  C,  Ch.  E.  167;  Knight  v.  M.  of  A^'^lte^ford,  2  Y.  &  C,  Ex. 
E.  38;  Curling  v.  Perring,  2  Myl.  &  K.  38;  Kennedy  v.  Lyell,  L.  E.,  23  Ch. 
D.  387,  per  Ct.  of  App. ;  S.  C.  nom.  Lyell  v.  Kennedy,  L.  E.,  9  App.  Cas.  81, 
per  Dom.  Proc.;  53  L.  J.,  Ch.  449,  S.  C;  and  Nias  v.  North.  &  East.  Ey.  Co., 
3  Myl.  &  Cr.  355.  These  cases  overrule  Preston  v.  Carr,  1  Y.  &  J.  175,  and 
Newton  v.  Beresford,  1  You.  376.     See  3  Hare,  129. 

(3663) 


790  RADCLIFFE  V.  FURSMAN — MINET  V.  MORGAN.       [PAET  11. 

formed  the  subject  of  the  suit,  except  so  far  as  they  contained  mere 
legal  advice  or  opinions.' 


§  925.  This  doctrine  was  propounded  in  the  case  of  Kadcliffe  'i  '^^^ 
V.  Fursman "  by  the  House  of  Lords,  at  a  time  when  the  subject 
of  professional  confidence  was  not  developed  to  the  same  extent 
as  it  is  at  the  present  day;*  but  although  that  decision  was  after- 
wards disapproved  of  by  almost  every  judge  under  whose  notice  it 
was  brought,  and  its  principle  was  more  than  once  successfully 
exposed  and  refuted,*  it  was  still  reluctantly  followed  till  the  year 
1873,  when  Lord  Chancellor  Selborne  had  the  hardihood  to  set  it 
at  nought  in  the  important  case  of  Minet  v.  Morgan.^ 


§  926.  If  a  solicitor  be  employed  for  two  parlies,  as  for  mortgagor    ^  848 
and  mortgagee,  and  peruse  on  behalf  of  the  former  his  abstracts  of 
the  title,  he  cannot,  as  against  him,  disclose  their  contents;"  and 
where  a  professional  man  was  engaged  by  vendor  and  purchaser  to 

^  Ld.  Walsingham  v.  Goodricke,  3  Hare,  122,  per  Wigram,  V.-C,  reluctantly 
submitting  to  Kadcliffe  v.  Fursman,  2  Br.  P.  C.  514,  Toml.  ed.  See,  also, 
Penruddock  v.  Hammond,  11  Beav.  59;  Hawkins  v.  Gathercole,  1  Sim.  N.  S. 
150  ;  Beadon  v.  King,  17  Sim.  34  ;  and  Greenlaw  v.  King,  1  Beav.  137,  in 
which  last  case  Ld.  Langdale  compelled  a  son  and  heir  to  discover  a  case, 
which  had  been  submitted  to  counsel  by  his  father,  and  had  come  with  the 
estate  to  his  hands.  See,  contra,  Wilson  v.  Northampton  &  Banbury  Junct. 
Ey.  Co.,  14  Law  Rep.,  Eq.  477,  per  Malins,  V.-C.  See,  further,  Manser  v. 
Dix,  1  Kay  &  J.  451,  per  Wood,  V.-C;  Macfarlan  v.  Rolt,  14  Law  Rep.,  Eq. 
580,  per  Wickens,  V.-C.  and  Calley  v.  Richards,  19  Beav.  401,  405,  per 
Romilly,  M.  R. 

2  2  Br.  P.  C.  514,  Toml.  ed.  ^  Per  Wigram,  V.-C,  3  Hare,  127. 

*  See  Bolton  v.  Corp.  of  Liverpool,  1  Myl.  &  K.  88,  per  Ld.  Brougham; 
Pearse  v.  Pearse,  1  De  Gex  &  Sm.  24,  25,  per  K.  Bruce,  V.-C. ;  Walker  v. 
Wildman,  6  Madd.  47;  Preston  v.  Carr,  1  Y.  &  J.  175;  Ld.  Walsingham  v. 
G  )odricke,  3  Hare,  127—130;  Bp.  of  Meath  v.  M.  of  Winchester,  10  Bli.  375, 
455;  Pearse  v.  Pearse,  1  De  Gex  &  Sm.  12.  See,  also,  two  articles  in  Law 
Mag.,  vol.  xvii.,  pp.  51 — 74,  and  vol.  xxx.,  pp.  107     123. 

5  8  Law  Rep.,  Ch.  Ap.  361;  42  L.  J.,  Ch.  627,  S.  C;  followed  by  Hall, 
V.-C,  inTurtonr.  Barber,  17  Law  Rep.,  Eq.  329;  43  L.  J.,  Ch.  468,  S.  C; 
and  in  Bacon  v.  Bacon,  34  L.  T.  349;  and  by  C  P.  D.  in  Mostyn  v.  West 
Mostyn  Coal  &  Iron  Co.,  34  L.  T.  531.  See,  also,  Bullock  r.  Corry,  L.  R., 
3  Q.  B.  D.  356;  47  L.  J.,  Q.  B.  352,  S.  C.  nom.  Bullock  r.  Corrie. 

6  Doe  V.  Watkins,  3  Bing.  N.  C  421;  4  Scott,  155,  S.  C  But  see  R.  v. 
Avery,  8  C.  &  P.  596,  cited  post,  §  929. 

(3664) 


CHAP.  XVI.]       SOLICITOR  ACTING  FOR  OPPOSITE  PARTIES.  797 

prepare  the  deeds,  and  the  di'aft  conveyance  was  confidentially  de- 
posited with  him  by  both  parties,  it  was  held  that  he  could  not  pro- 
duce it  at  the  trial  against  the  interest  of  the  purchaser's  devisees, 
though  with  the  consent  of  the  vendor.^  If,  however,  a  solicitor, 
acting  as  such  for  opposite  parties,  has  an  offer  made  to  him  by  the 
one  for  the  purpose  of  being  communicated  to  the  other,  he  may  be 
called  upon  to  disclose  the  nature  and  terms  of  this  offer  at  the 
instance  of  either  party. ■^  And,  where  two  persons,  having  a  dis- 
pute about  a  claim  made  by  one  of  them  upon  the  other,  went 
together  to  a  solicitor,  when  one  of  them  made  a  statement,  and  in- 
structed the  solicitor  to  write  a  letter  to  a  third  party  on  the  subject 
of  the  claim, — it  was  held  that,  in  a  subsequent  action  between  these 
two  persons,  both  the  statement  and  the  letter  were  admissible  in 
evidence.^  So,  if  a  wife  were  induced  by  her  husband  to  deal  with 
her  separate  interest  under  the  advice  of  her  husband's  solicitor,  he 
would  be  regarded  by  the  client  as  acting  for  both  husband  and 
wife;  and,  consequently,  in  the  event  of  any  dispute  arising  between 
the  married  coupJe,  each  party  would  be  entitled  to  call  for  the  pro- 
duction, and  to  have  full  inspection,  of  all  documents  that  might 
have  come  into  possession  of  the  solicitor  in  the  course  of  the 
transaction.^  In  all  these  cases  the  question  would  seem  to  be,  was 
the  communication  made  by  the  party  to  the  witness  in  the  character 
of  his  own  exclusive  solicitor?  If  it  was,  the  bond  of  secrecy  is 
imposed  upon  the  witness;  if  it  was  not,  the  communication  will 
not  be  privileged.^ 

§  927."  The  protection  does  not  cease  with  the  termination  of  the    I 
suit,  or  other  litigation  or  business,  in  which  the  communications 


»  Doe  V.  Seaton,  2  A.  «&  E.  171;  4  N.  &  M.  81,  S.  C. 

''  Baugh  V.  Cradocke,  1  M.  &  Rob.   182;  Cleve  v.  Powel,  id.   228;   Perry  v. 
Smith,  9  M.  &  W.  681;  Reynell  v.  Sprye,  10  Beav.  51. 

*  Shore  v.  Bedford,  5  M.  &  Gr.  271.     See,  also,  Griffith  v.  Davies,  5  B.  &  Ad. 
502,  and  Weeks  v.  Argent,  16  M.  &  W.  817. 

*  Warde  v.  Warde,  3  M.  &  Gord.  365;  overruling  a  decision  by  Ld.  Cran worth 
in  the  same  ease,  reported  1  Sim.  N.  S.  18. 

=  Perry  v.  Smith,  9  M.  &  W.  682,  683,  per  Parke,   B.;  Eeynell  v.  Sprye,  10, 
Beav.  51. 
.  «  Gr.  Ev.  g  243,  in  part. 

(3665) 


849 


798  PROTECTION  REMAINS  FOR  EVER.  [PAET  II. 

were  made;  nor  is  it  affected  by  the  party's  ceasing  to  employ  the 
solicitor,  and  retaining  another,  nor  by  any  other  change  of  relation 
between  them,  nor  by  the  solicitor's  being  struck  off  the  rolls,'  nor 
by  his  becoming  personally  interested  in  the  property,  to  the  title 
of  which  the  communications  related,^  nor  even  by  the  death  of  the 
client.  The  seal  of  the  law,  once  fixed  upon  the  communications, 
remains  for  ever,^  unless  it  be  removed  either  by  the  party  himself,* 
in  whose  favour  it  was  placed,  or  perhaps,  in  the  event  of  his  death, 
by  his  personal  representative;^  and,  therefore,  if  the  client 
becomes  a  bankrupt,  his  trustee  cannot  waive  the  privilege  without 
his  particular  permission.''  Neither  does  the  client  waive  his 
privilege  by  calling  the  solicitor  as  a  witness,  unless  he  also  ex- 
amines him  in  chief  to  the  matter  privileged;'  and  even  in  that 
case,  it  has  been  held  in  Ireland,  that  the  cross-examination  must 
be  confined  to  the  point  upon  which  the  witness  has  been  examined 
in  chief.^ 


§  928.  In  stating  that  the  privilege  does  not  terminate  with  the  ^  850 
death  of  the  client,  care  must  be  taken  to  distinguish  between 
cases  where  disputes  arise  between  the  client's  representatives  and 
strangers,  and  those  in  which  both  the  litigating  parties  claim  under 
the  client.  In  the  former  class  of  cases  no  doubt  the  protection 
will  survive  for  the  benefit  of  those  who  represent  the  client;  but 
in  the  latter,  it  would  be  obviously  unjust  to  determine  that  the 
privilege  should  belong  to  the  one  claimant  rather  than  to  the  other. 


»  Ld.  Cholmondeley  v.  Ld.  Clinton,  19  Yes.  268. 

^  Chant  V.  Brown,  7  Hare,  79. 

•''  Wilson  V.  Rastall,  4  T.  E.  759,  per  Buller,  J. ;  Parker  v.  Yates,  12  Moore, 
520.  But  see  Charlton  v.  Coombes,  32  L.  J.,  Ch.  284,  per  Stuart,  Y.-C;  4 
Gifif.  372,  S.  C. 

*  Merle  v.  More,  Ry.  &  M.  390,  per  Best,  C.  J. ;  Baillie's  case,  21  How.  St. 
Tr.  341,  358,  408.  "  If  the  client  be  willing,  the  court  will  compel  the  counsel 
to  discover  what  he  knows,"  per  North,  C.  J.,  in  Lea  v.  Wheatley,  in  C.  B. 
Pasch.  30  Car.  2,  cited  in  n.  to  20  How.  St.  Tr.  574.  See,  also,  Blenkinsop  v. 
Blenkinsop,  17  L.  J.,  Ch.  343,  and  Chant  v.  Brown,  7  Hare,  79. 

*  Doe  V.  M.  of  Hertford,   19  L.  J.,  Q.  B.  526. 

6  Bowman  v.  Norton,  5  C.  &  P.  177,  per  Tindal,  C.  J. 

'  Yaillant  v.  Dodemead,  2  Atk.  524;  Waldron  v.   Ward,  Sty.  449;  Bate  v. 
Kinsey,  1  C.  M.  &  R.  38. 
8  M'Donnell  v.  Conry,  Jr.  Cir.  R.  807,  per  Richards,  B. 

(3666) 


CHAP.  XVI.]       WHETHER  PROTECTION    EXTENDS  TO  CRIMES.  799 

The  rule,  therefore,  has  no  application  in  cases  of  testarnentary  dis- 
positions, and  as  between  parties  claiming  under  the  testator;  and 
where  the  question  was,  whether  certain  executors  were  or  were  not 
trustees  for  the  testator's  next  of  kin,  the  evidence  of  the  solicitor 
who  prepared  the  will  as  to  what  had  passed  between  him  and  the 
testator  on  the  subject  of  the  will,  has  been  received  on  behalf  of 
the  next  of  kin.' 


§  929.  Whether  the  protection  can  be  removed  without  the  ?  851 
client's  consent,  in  cases  where  the  interests  of  criminal  justice 
require  the  production  of  the  evidence,  may  admit  of  some  doubt.^ 
In  one  case  where  a  party  had  intrusted  a  solicitor  with  a  promis- 
sory note,  and  had  instructed  him  to  bring  an  action  upon  it,  Mr. 
Justice  Holroyd  held  that  the  solicitor  ought  not  to  pi'oduce  the 
note,  on  the  trial  of  a  subsequent  indictment  against  his  client  for 
forgei'y;^  and  a  similar  decision  appears  to  have  been  pronounced 
by  the  Court  of  King's  Bench  in  the  time  of  Lord  Mansfield.*  On 
the  other  hand,  Mr.  Justice  Patteson  has  compelled  a  solicitor, 
who  had  been  employed  by  a  mortgagor  and  mortgagee  to  negotiate 
a  loan  between  them,  and  had  received  from  the  former  a  forged 
will  as  part  of  his  title-deeds,  to  produce  the  will  on  a  trial  of  the 
mortgagor  for  forging  that  instrument.^  So,  where  a  party  having 
possessed  himself  of  the  title  deeds  of  a  deceased  person,  placed  a 
forged  will  of  the  deceased  amongst  them,  and  then  sent  the  whole 
to  his  solicitor,  ostensibly  for  the  purpose  of  asking  his  advice  upon 
them,  but  really,  as  it  seemed,  that  the  solicitor  might  find  the  will 


'  Eussell  V.  Jackson,  9  Hare,  393,  per  Turner,  V.-C. 

2  R.  V.  Tylney,  18  L.  J.,  M.  C.  37;  S.  C,  nom.  E.  v.  Tuffs,  1  Den.  319.  But 
this  doubt  is  certainly  not  applicable  to  matrimonial  proceedings,  "which  are 
civil  proceedings,  though  the  question  at  issue  may  involve  the  sin  of 
adultery,  Branford  v.  Branford,  L.  R.,  4  P.  D.  72;  48  L.  J.,  P.  D.  &  A.  40, 
S.  C. 

3  R.  V.  Smith,  cited  in  1  Ph.  Ev.  171.  See,  also,  R.  v.  Hankins,  2  C.  &  Kir. 
823. 

*  R.  r.  Dixon,  3  Burr.  1687.     See,  also,  Anon.,  8  Mass.  370. 

*  R.  r.  Avery,  8  C.  &  P.  596,  599.  In  this  case  the  learned  judge  is  reported 
to  have  said  that  R.  v.  Smith  was  not  law,  but  in  R.  v.  Tylney,  18  L.  J.,  M.  C. 
37;  S.  C,  nom.  R.  v.  Tuffs,  1  Den.  324,  he  intimated  that  this  language  was  too 
strong.     See,  also,  ante,  ?§  912,  923. 

(3667) 


800  APPARENT  EXCEPTIONS  TO  RULE.  [PART  II. 

and  act  upon  it, — the  judges  nuauimously  held,  that  the  solicitor 
was  bound  to  produce  the  will  on  the  trial  of  his  client  for  forgery, 
it  not  having  been  intrusted  to  him  in  professional  confidence,  even 
if  that  would  have  made  any  difference.^  Again,  where  a  prisoner 
was  indicted  for  forging  a  will,  and  it  appeared  that  his  wife  had 
taken  the  will  to  a  solicitor,  and  asked  him  to  advance  money  upon 
it  for  her  husband,  which  he  refused  to  do,  but  took  a  copy  of  the 
will,  the  judges  most  properly  held  that  such  copy  was  admissible 
as  secondary  evidence,  and  that  the  conversation  between  the  wife 
and  the  solicitor  was  not  privileged."  This  last  case,  however,  is 
scarcely  an  authority  on  either  side  of  the  question ;  for  the  judges 
took  the  distinction  tha't  the  solicitor  consulted  was  not  the  pri- 
soner's own  legal  adviser. 

§  930.^  This  rule  may  be  further  illustrated  by  reference  to  the 
cases  in  which  the  solicitor  may  be  examined,  and  which  are  therefore 
somtimes  mentioned  as  exceptions  to  the  rule.  These  apparent  ex- 
ceptions "*  are, — where  the  knowledge  was  not  acquired  by  the  solicitor 
solely  by  his  being  employed  professionally,  but  was  in  some  measure 
obtained  by  his  acting  as  a  2^<^''fU  to  the  transaction,  and  the  more 
especially  so,  if    this  transaction    was   fraudulent;^    or  where  the 


'  R.  V.  Hay  ward,  2  C.  &  Kir.  234.  See  R.  v.  Jones,  1  Den.  166;  R.  v. 
Brown,  9  Cox,  281;  and  R.  v.  Downer,  14  Cox,  486. 

2  R.  V.  Farley,  2  C.  &  Kir.  313;  1  Den.  197,  S.  C. 

^  Gr.  Ev.  I  244,  in  great  part. 

*  Besides  the  exceptions  here  stated,  the  following  ease  may  be  naentioned. 
In  a  suit  for  taking  a  partnership  account  between  solicitors,  semble  that  the 
plaintiff  is  entitled  to  the  discovery  and  production  of  papers  material  to  the 
account,  though  they  relate  to  professional  business  transacted  for  clients,  and 
the  consequent  effect  of  their  production  must  be  that  some  stranger  will 
become  acquainted  with  matters  intrusted  to  the  partners  in  confidence. 
Brown  v.  Perkins,  2  Hare,  540.  This  case  obviously  rests  on  necessity, 
for  otherwise  no  account  could  ever  be  taken  between  solicitors  acting  in 
partnership. 

^  See  Follett  v.  Jefferyes,  1  Sim.  N.  S.  3,  17,  where  Rolfe,  V.-C,  observed, 
"  It  is  not  accurate  to  speak  of  cases  of  fraud,  contrived  by  the  client  and 
.solicitor  in  concert  together,  as  cases  of  exception  to  the  general  rule.  They 
are  cases  not  coming  within  the  rule  itself,  for  the  rule  does  not  apply  to  all 
which  passes  between  a  client  and  his  solicitor,  but  only  to  what  passes 
between  them  in  professional  confidence;  and  no  court  can  permit  it  to  be 
said  that  the  contriving  of  a  fraud  can  form  part  of  the  professional  occupa- 

(3668) 


CHAP.   XVI.]  APPARENT  EXCEPTIONS  TO  RULE.  801 

commiinicaLioa  was  made  before  the  solicitor  xvas  employed  a.^  such, 
OY-afterhis  employment  had  ceased; — or  where,  though  consulted  by 
a  friend  because  he  was  a  solicitor,  he  had  refused  to  act  as  such, 
and  was  therefore  only  applied  to  as  a  friend; — or  yph ere  the  infor- 
mation was  obtained,  not  exclusively  from  the  client,  but  also  from 
some  other  independent  source;' — or  where  it  could  not  be  fairly 
stated  that  any  communication  had  been  made;  as  where,  for 
instance,  a  fact,  something  that  was  done,  became  known  to  him, 
from  his  having  been  brought  to  a  certain  place  by  the  circumstance 
of  his  being  the  solicitor,  but  of  which  fact  any  other  man,  if  there, 
would  have  been  equally  conusant  (and  even  this  has  been  held 
privileged  in  some  of  the  ca?es); — or  where  the  matter  communi- 
cated was  not  in  its  nature  x>rivate,  and  could  in  no  sense  be  termed 
the  subject  of  a  confidential  disclosure;^— or  where  it  had  no  refer- 
ence to  professional  employment,  though  disclosed  while  the  relation 
of  solicitor  and  client  subsisted;* — or  where  the  solicitor,  having 
made  himself  a  subscribing  tvitness  and  thereby  assumed  another 
character  for  the  occasion,  adopted  the  duties  which  it  imposes,  and 
became  bound  to  give  evidence  of  all  that  a  subscribing  witness  can 
be  required  to  prove.  In  all  such  cases,  it  is  plain  that  the  solicitor 
is  not  called  upon  to  disclose  matters,  which  he  can  be  said  to  have 
learned  by  communication  with  his  client,  or  on  his  client's  behalf; 
matters,  which  were  so  committed  to  him  in  his  capacity  of  solici- 
tor; and  matters,  which  in  that  capacity  alone  he  had  come  to 
know.^ 

§  931.     It  may  here  be  expedient  to  illustrate  these  apparent  ex-    I  ^53 


tion  of  a  solicitor."     See,    also,    Charlton   v.  Coombe.s,   32  L.  J.,  Ch.  284;  4 
Giflf.  372,  S.  C;  and  Kelly  v.  Jackson,  13  Ir.  Eq.  R.  129. 

^  Lewis  V.  Pennington,  29  L.  J.,  Ch.  670,  per  Romilly,  M.  R. ;  March  v. 
Keith,  30  L.  J.,  Ch.  127,  per  Kindersley,  V.-C;  S.  C.  nom.  Mar.sh  v.  Keith, 
1  Drew.  &  Sm.  342. 

2  Brown  r.  Foster,  1  H.  &  N.  7.36,  cited  post,  ?  934. 

«  See  Doe  v.  M.  of  Hertford,  19  L.  J.,  Q.  B.  526. 

*  Goodall  V.  Little,  20  L.  J.,  Ch.  132;  1  Sim.  N.  S.  155,  S.  C. 

^  Per  Ld.  Brougham,  in  Greenough  v.  Gaskell,  1  Myl.  &  K.  104.  See,  aLso, 
Deshorongh  r.  Rawlins,  3  Myl.  &  Cr.  521,  522;  Story,  Eq.  PI.  §g  601,  602; 
Bolton  V.  Corp.  of  Liverpool,  1  Myl.  &  K.  88;  Annesley  v.  Ld.  Anglesea,  17 
How.  St.  Tr.  1239—1244. 

(3669) 


802  ILLUSTRATION  OF  APPARENT  EXCEPTIONS.  [PART  II. 

ceptions  somewhat  more  at  length.  Thus,  if  a  solicitor,  having 
been  engaged  in  a  conspiracy,  be  willing  to  turn  informer,  he  cannot 
be  prevented  from  disclosing  what  he  knows  of  the  transaction, 
though  he  may  have  been  employed  by  some  of  the  guilty  parties 
in  his  professional  character,  and  have  acquired  much  of  his  know- 
ledge in  consequence  of  that  connexion  '  In  one  case,^  usury  in  a 
mortgage  was  proved  by  the  plaintiff's  solicitor,  who  prepared  the 
deed,  and  who  was  called  by  the  defendant  to  prove  the  considera- 
tion usurious.  Lord  Kenyon,  who  admitted  this  evidence,  assumed 
that  the  solicitor  had,  by  his  conduct,  become  a  party  to  the  transac- 
tion; but  as  the  facts  do  not  warrant  this  assumption,  the  case 
cannot  be  supported  at  the  present  day,^  and  it  is  only  valuable  as 
recognising  the  general  principle,  that  if  a  solicitor  acts  as  a  party, 
no  knowledge  he  obtains  will  be  privileged.  Again,  a  solicitor  has 
been  compelled  to  disclose  a  confession  made  to  him  by  his  client 
before  the  retainer,  respecting  an  erasure  in  a  will ;  *  as  also  a 
gratuitous  conversation  which  his  client  had  held  with  him  after 
the  compromise  of  a  suit,  in  which  he  stated  that  he  was  glad  the 
action  was  settled,  as  the  promissory  note  on  which  it  was  founded 
had  been  indorsed  to  him  without  consideration,  and  with  notice 
that  it  was  void  as  being  mixed  up  without  a  lottery  transaction.^  On 
the  other  hand,  where  a  person,  having  possession  of  a  deed  in  the 
character  of  trustee  to  the  defendant,  had  first  obtained  a  knowledge 
of  its  contents  while  acting  as  his  solicitor,  the  knowledge  thus 
obtained  was  held  to  be  privileged s*^  and,  in  another  case,  where  a 
solicitor  became  a  trustee  under  a  deed  for  the  benefit  of  his  client's 
creditors,  it  was  held  that  subsequent  communications  made  to  him 
by  the  client  could  not  be  divulged.' 

§  932.  Where  a  trustee  for  two  parties  had   acted  as  solicitor  for    g  ^54 


1  1  Myl.  &  K.  103,  104,  109,  per  Ld.  Brougham. 

2  Damn  V.  Smith,  Pea.  i{.  108. 

^  See  Ld.  Brougham's   ohservations  in  1  Myl.  &  K.  109.     But  see  ante,  §  929. 

*  Cutts  r.  rickering,  1  Ventr.  197. 

^  Cohden  c.  Kendrick,  4  T.  R.  431. 

®  Davies  r.  Waters,  9  M.  &  W.  608.  In  that  case,  the  witne.ss,  as  trustee, 
might  equally  have  refused  to  state  the  contents  of  the  deed,  but  it  was 
objected  in  Banc  that  tliis  point  was  not  raised  at  Nisi  Prius.     See  ante,  ^  918. 

'  Pritchard  v.  Foulkes,  1  Coop.  14. 

(3670) 


CHAP.  XVI.]        ILLUSTRATION  OF  APPARENT  EXCEPTIONS.  803 

one,  in  respect  of  certain  disputes  which  had  arisen  between  the 
two  on  the  subject  of  the  trusts,  the  court  held  that,  inasmuch  as 
he  had  been  vohmtarily  placed  in  a  situation  inconsistent  with  his 
duty  as  trustee  for  both  parties,  the  communications  between  him 
and  his  client  were  not  privileged  as  against  the  other  cestui  que 
trust.*  So,  where  a  solicitor  had  been  confidentially  consulted,  but 
had  not  been  professionally  employed,  because  he  was  at  that  time 
acting  as  undersheriff,  he  was  held  bound  to  disclose  what  had  been 
communicated  to  him.^  Again,  in  Gri£&th  v.  Davies,^  a  witness 
called  by  the  plaintiff  was  permitted  to  state  a  conversation,  in 
which  the  defendant  proposed  a  compromise  to  the  plaintiff,  although, 
when  the  conversation  took  place,  the  witness  was  attending  as 
solicitor  for  the  defendant;  for,  in  this  case,  the  knowledge  gained 
by  the  witness  was  not  by  reason  of  its  being  intrusted  to  him  in 
his  professional  character,  but  merely  by  his  being  present  at  the 
conversation.*  So,  if  a  solicitor,  by  the  direction  of  his  client, 
makes  a  proposal  to  the  opposite  party,  he  may  be  compelled  to  dis- 
close what  he  stated  to  that  party,  though  he  cannot  divulge  what 
his  client  had  communicated  to  him; ^  and  if  communications  from 
an  adverse  party  be  made,  either  directly  to  the  solicitor  for  the 
purpose  of  being  communicated  to  the  client,®  or  to  the  client  him- 
self in  the  presence  of  the  solicitor,^  the  solicitor  is  not  at  liberty 
to  withhold  them.  Indeed,  he  is  bound,  as  it  seems,  to  produce  all 
letters,  and  to  disclose  all  information,  communicated  to  him  from 
collateral  quarters.^ 


1  Tugwell  V.  Hooper,  10  Beav.  S48. 

"^  Wilson?;.  Rastall,  4  T.  R.  753.     See  Galley  v.  Richards,  19  Beav.  401,  404. 
»  5B.  &Ad.  502.     See,   also,   Shore  v.  Bedford,   5  M.  &  Gr.  271;  Weeks  t>.. 
Argent,  16  M.  &  W.  817. 

*  Per  Alderson,  B.,  in  Davies  v.  Waters,  9  M.  &  W.  611. 

*  Per  Parke  and  Patteson,  Js.,  5  B.  &  Ad.  503,  commenting  on  and  ques- 
tioning Gainsford  v.  Grammar,  2  Camp.  9.  See,  also,  Ripon  v.  Davies,  2  N.  «fe 
M.  310;  and  Reynell  v.  Sprye,  10  Beav.  51. 

^  Spenceley  v.  Schulenburgh,  7  East,  357.  There  the  solicitor  was  held 
bound  to  discover  the  contents  of  a  notice  to  produce  documents,  -which  he  had 
received  from  the  opposite  solicitor.  See,  also,  Ford  v.  Tennant,  32  L.  J.,  Ch. 
465,  per  Romilly,  M.  R.;  32  Beav.  162,  S.  C. ;  Gore  v.  Harris,  21  L.  J.,  Ch.  10, 
per  Parker,  V.-C. ;  S.  C.  nom.  Gore  v.  Bowser,  5  De  Gex  &  Sm.  30;  Paddon  v. 
Winch,  39  L.  J.,  Ch.  627,  per  James,  V.-C. 

''  Desborough  v.  Rawlins,  3  Myl.  &  Cr.  515,  per  Ld.  Cottenham. 

*  Thus,  a  communication  between  a  solicitor  and  one  of  his  client's  witnesses 

30   LAW  OF  EVID. — V.  II.  (3671) 


804  ILLUSTRATION  OF  APPARENT  EXCEPTIONS.  [PART  II. 

§  933.  The  legal  adviser  must  also  disclose  all  questions  put  to 
him  by  his  client,  together  with  his  answers  thereto,  provided 
such  questions  were  asked  in  order  to  gain  information  respecting 
matters  of  fact,  as  distinguished  from  those  put  with  the  view  of 
obtaining  legal  advice.^  This  proposition  has,  on  one  occasion,^ 
been  applied  to  circumstances  which  seem  scarcely  to  have  war- 
ranted its  application.  The  question  was,  whether  the  client 
had  committed  an  act  of  bankruptcy  on  a  particular  day.  On  that 
day  the  client  inquired  of  his  solicitor,  whether  he  could  safely 
attend  a  particular  meeting  of  his  creditors  without  being  arrested 
for  debt.  The  solicitor  advised  him  to  remain  in  his  ofi&ce,  until 
it  was  ascertained  whether  the  creditors  would  engage  to  give  him 
safe-conduct,  and  he  accordingly  remained  there  for  two  hours  to 
avoid  being  arrested,  till  the  solicitor  returned  from  the  meeting. 
The  court  held  that  what  had  passed  between  the  solicitor  and 
his  client  was  receivable  in  evidence.  Lord  Tenterden  observing, 
that  "  a  man  could  hardly  ask,  as  matter  of  law,  whether  he  would 
be  free  from  arrest  while  attending  a  voluntary  meeting  of 
creditors,  though  he  might  well  ask,  as  matter  of  fact,  from  the 
perison  at  whose  suggestion  the  creditors  had  been  convened, 
whether  any  arrangement  had  been  made  with  the  creditors  to 
prevent  an  arrest;"  and  his  lordship  added,  "The  solicitor 
gives  no  legal  advice,  his  answer  implying  that  no  arrangement 
had  been  made,  but  that  he  would  see  at  the  meeting  whether 
any  could  be  effected;  and  he  recommends  his  client,  not  as  a 
legal  adviser  but  as  any  agent  or  any  friend  might  have  recom- 
mended, to  stay  where  he  was  till  that  matter  of  fact  could  be 
ascertained.^ 


as  to  the  evidence  to  be  given  by  the  witness,  is  not  privileged ;  Mackenzie 
V.  Yeo,  2  Curt.  866.  But,  semble,  a  solicitor  is  not  bound  to  produce  the 
"proof"  of  a  witness's  evidence,  which  he  had  prepared  for  insertion  in  his 
counsel's  brief,  per  Bovill,  C.  J.,  in  the  Tichborne  case,  28  Feb.,  1872, 
MS. 

'  Sawyer  v.  Birchmore,   3  Myl.  &  K.  572,  per  Ld.  Cottenham;  Spenceley  v. 
Schulenburgh,  7  East,  357;  Desl)orough  v.  Rawlins,  3  Myl.  &  Cr.  515. 

*  Bramwell  v.  Lucas,  2  B.  &  C.  743,  observed  upon  by  Ld.   Brougham,  in 
1    Myl.    &  K.    113—115;    and  also  by   Ld.    Cottenham,    in  3   Myl.    &    Cr.  , 
520—522. 

3  2  B.  &  C.  749,  750. 

(3672) 


CHAP.  XVI.]        ILLUSTRATION  OF  APPARENT  EXCEPTIONS.  805 

§  934.  Again,  it  is  no  breach  of  professional  confidence  for  a  §  856 
legal  adviser  to  give  evidence  of  a  fact  not  communicated  directly 
to  him  by  his  client,  but  the  knowledge  of  which  has  been  acquired 
by  him  during  the  progress  of  a  trial.  The  case  of  Brown  v. 
Foster '  well  illustrates  this  proposition.  There,  counsel  had 
attended  before  a  magistrate  on  behalf  of  a  man  charged  with 
embezzlement,  and  the  prosecutor  had  produced  a  book,  in  which 
the  accused,  contrary  to  his  duty,  had  omitted  to  enter  a  siim  of 
money  received  by  him.  On  a  subsequent  examination  the  book 
was  found  to  contain  the  entry.  The  accused  afterwards  brought 
an  action  for  malicious  prosecution,  and  it  was  held  at  the  trial, 
that  the  counsel  might  give  evidence  that  the  entry  was  not  in  the 
book  at  the  time  of  the  first  examination,  as  that  fact  had  not  been 
communicated  to  him  by  his  client,  but  he  had  become  cognisant 
of  it  through  his  own  personal  observation.  A  solicitor  may  also 
be  called,  either  to  prove  his  client's  handwriting,  though  he  be 
acquainted  with  it  only  from  having  seen  him  sign  documents  in 
the  cause  ;^  or  to  disclose  the  name  of  the  person  by  whom  he  was 
retained,  in  order  to  let  in  the  declarations  and  admissions  of  the 
real  party  in  interest;  ^  or  to  discover  when  and  to  whom  he  parted 
with  his  client's  title-deeds,  and  in  whose  possession  they  are.* 
So,  for  the  purpose  of  letting  in  secondary  evidence  of  the  contents 
of  a  document,  a  solicitor  will  be  bound  to  answer  whether  it  is 
in  his  possession  or  elsewhere  in  court,  even  though  he  may  have 
obtained  it  from  his  client  in  the  course  of  communication  with 
reference  to  the  cause.  ^ 


§  935.  The  legal  adviser,  too,  is  bound   to  furnish  any  informa-    ^  856 
tion  in  his  power  which  may  lead  to  the  discovery  of  his  client's 

^  1  H.  «fe  N.  736. 

^  Hurd  V.  Moring,  1  C.  &  P.  372,  per  Abbott,  C.  J.;  Johnson  v.  Daverne, 
19  Johns.  134;  4  Hawk.  P.  C,  2,  c.  46,  ^  89. 

•'*  Levy  V.  Pope,  M.  &  M.  410,  per  Parke,  J.;  Brown  v.  Payson,  6  New 
Hamps.  443. 

*  Banner  v.  Jackson,  1  De  Gex  &  Sm.  472,  per  K.  Bruce,  V.-C,  reluctantly 
yielding  to  Stanhope  i'.  Knott,  2  Svvanst.  221,  n.,  and  Kingston  v.  Gale,  Kep. 
temp.  Finch,  259. 

^  Dwyer  v.  Collins,  7  Ex.  R.  639;  Coates  v.  Birch,  2  Q.  B.  252;  1  G.  &  D. 
474,  S.  C. ;  Bevan  v.  Waters,  M.  &  M.  235,  per  Best,  C.  J. ;  Eicke  v.  Nokes, 
id.  303;  Roupell  v.  Haws,  3  Fost.  &  Fin.  797,  per  Channell,  B. 

■    (3673) 


806  ILLUSTRATION  OF  APPARENT  EXCEPTIONS.  [  PART  H. 

address,  especially  if  that  client  be  a  ward  in  Chancery,  who  is 
attempting  to  conceal  his  residence  from  the  court.'  So,  also,  he 
may  be  called  to  identify  his  client  as  the  person  who  has  put  in 
any  pleading,  or  sworn  any  affidavit,  because  these  acts,  so  far  from 
being  secrets,  are  in  their  very  nature  matters  of  publicity.^  From 
one  case  it  would  even  seem  that  a  solicitor  might  be  compelled  to 
divulge  the  character  in  which  his  client  employed  him,  as,  for 
instance,  whether  as  executor,  or  trustee,  or  on  his  own  private 
account; "  but,  in  America,  it  has  been  held,  that  counsel  could  not 
sfete  whether  they  were  employed  to  conduct  an  ejectment  for  their 
client,  as  landlord  of  the  j^remises.*  A  solicitor,  who  has  prepared 
a  will  at  the  instance  of  a  party  benefited  by  it,  is  not  privileged 
to  withhold  from  the  Probate  Division  of  the  High  Court  any  facts, 
which  are  connected  with  contemporaneous  business  transacted 
between  the  testator  and  himself  on  acccount  of  his  client  the 
legatee,  when  his  opinion  of  the  testator's  capacity  to  make  a  will 
is  in  any  degree  founded  on  such  facts.^ 


§  936.  Moreover,  the  privilege  does  not  attach  to  unnecessary  I  857 
communications  made  by  a  client  to  his  legal  adviser;  and  there- 
fore a  prosecutor's  solicitor  has  been  allowed  to  state  that,  pending 
the  proceedings  on  the  indictment,  his  client  had  observed  to  him 
that  he  would  give  a  large  sum  to  have  the  prisoner  hanged;"  and, 
in  an  action  brought  by  a  solicitor  for  his  bill,  where  the  question 
was  whether  he  had  been  employed  by  the  defendant  or  by  a  third 
party,  a  statement  made  by  the  plaintiff  to  his  solicitor,  on  intro- 
ducing such  third  party  to  him,  was  held  to  be  excluded  from  the 


1  Ramsbotham  v.  Senior,  8  Law  Eep.,  Eq.  575,  per  Malins,  V.-C. ;  Burton 
V.  Ld.  Darnley,  id.  576,  n.;  Ex  parte  Campbell,  5  Law  Rep.,  Ch.  Ap.  703. 
But  see  Heath  v.  Crealock,  15  Law  Rep.,  Eq.  257,  per  Bacon,  V.-C. 

2  B.  N.  P.  284,  b.;  Studdy  v.  Sanders,  2  D.  &  R.  347;  Doe  v.  Andrews, 
2  Cowp.  846,  per  Ld.  Mansfield;  cited  by  Ld.  Brougham  in  1  Myl.  &  K.  108, 
overruling  R.  v.  Watkinson,  2  Str.  1122. 

'  BeckAvith  v.  Benner,  6  C.  &  P.  681,  per  Gurney,  B. 
*  Chirac  v.  Reinicker,  11  Wheat.  280,  295. 
5  Jones  V.  Goodrich,  5  Moo.  P.  C.  R.  16,  25. 

«  Annesley  v.  Ld.  Anglesea,  17  How.  St.  Tr.  1223—1244;  Cobden  v. 
Kendrick,  4  T.  R.  431,  cited  ante,  §  931. 

(3674) 


CHAP.  XVI.]         ILLUSTRATION  OF  APPARENT  EXCEPTIONS.  807 

rule  of  privilege.^  So,  if  a  solicitor  attests  an  instrument  which 
his  client  executes,  he  may  be  compelled,  either  to  prove  the  execu- 
tion, or  to  disclose  all  that  passed  at  that  time,  even  though  such 
evidence  may  establish  the  invalidity  of  the  deed;  for  by  becoming 
a  subscribing  witness  he  makes  himself  a  public  man,  and  pledges 
himself  to  give  evidence  on  the  subject,  whether  he  be  called  by  the 
party  by  or  to  whom  the  deed  is  executed,  or  by  any  other  person 
who  claims  an  interest  in  the  property.^ 

§  937.  But  where  the  assignees  of  a  bankrupt,  in  an  action  of  §  8r)6 
assumpsit  brought  by  them,  endeavoured  to  establish  that  the 
bankrupt  had  made  a  fraudulent  conveyance  to  his  son,  and,  in 
order  to  prove  this  transaction,  called  the  banki'upt's  solicitor.  Lord 
Ellen  borough  held  that,  though,  as  attesting  witness  to  the  deed, 
he  was  bound  to  disclose  what  took  place  at  the  time  of  its 
execution,  he  was  privileged  from  stating  what  occurred  during  its 
concoction  and  preparation,  and  could  not  be  asked  whether  it  had 
not  been  subsequently  destroyed,  if  the  only  knowledge  he  had,  as 
to  its  concoction,  preparation  or  destruction,  was  acquired  from 
his  confidential  situation  as  solicitor.^  So,  a  legal  adviser  cannot, 
as  it  would  seem,  disclose  in  what  condition  an  instrument  was 
when  it  was  intrusted  to  him  by  his  client,  as  whether  or  not  it 
then  were  stamped,  or  indorsed,  or  had  an  erasui'e  upon  it;  *  and  in 
an  action  of  trover  for  a  lease,  brought  by  the  assignees  of  a  bank- 
rupt, where  the  question  was  whether  the  lease  had  been  deposited 


1  Gillard  v.  Bates,  6  M.  &  W.  547;  8  Dowl.  774,  S.  C.  See,  also,  Calclbeck 
V.  Boon,  I.  E.,  7  C.  L.  32. 

^  Doe  V.  Andrews,  2  Cowp.  845;  Robson  i\  Kemp,  5  Esp.  53;  4  id.  235; 
Crawcour  v.  Salter,  L.  E.,  18  Ch.  D.  30,  3G,  per  Maliiis,  V.-C;  Sanford  v 
Eemington,  2  Ves.  189.  ^  Eobson  t\  Kemp,  5  Esp.  52. 

*  Wheatley  v.  Williams,  1  M.  &  W.  533.  In  B.  N.  P.  284  a,  it  is  stated, 
that,  "  if  the  question  were  about  a  rasure  in  a  deed  or  will,  the  attorney 
might  be  examined  to  the  question,  whether  he  had  ever  seen  it  in  any  other 
plight;"  but,  in  Wheatley  v.  Williams,  Ld.  Abiuger  observed,  that  this 
passage  "must  apply  to  a  ease  where  the  attorney  has  his  knowledge  in- 
dependently of  any  communication  from  the  client;  it  cannot  mean  that 
where  the  attorney,  coming  to  the  client  for  a  confidential  purpose,  obtains 
some  other  collateral  information  which  he  would  not  otherwise  have  pos- 
sessed, he  can  be  compelled  to  disclose  it,"  }).  541.  See,  also.  Brown  v.  Pay- 
son,  6  New  Hamps.  443. 

(3675) 


808  JUDGES,  ARBITRATORS,  AND  COUNSEL.  [PABT  II. 

with  the  defendant  by  the  bankrupt  before  or  after  the  bankruptcy, 
a  solicitor,  who,  after  the  act  of  bankruptcy,  had  been  applied  to  by 
the  bankrupt  to  procure  a  loan,  was  not  permitted  to  state  whether 
his  client  had,  on  that  occasion,  brought  to  him  the  lease,  for  the 
purpose  of  raising  money  upon  it.' 

§  938."  Judges,  arbitrators,  and  counsel  form  a  third  class  of  ?  859 
persons,  who,  from  motives  of  public  policy,  are  perhaps  not 
compellable  to  testify  as  to  certain  matters,  in  which  they  have 
been  judicially  or  professionally  engaged;  though,  like  ordinary 
persons,  they  may  be  called  upon  to  speak  to  any  foreign  and 
collateral  matters,  which  happened  in  their  presence,  while  the 
trial  was  pending,  or  after  it  was  ended.^  In  regard  to  judges  of 
courts  of  record,  it  is  considered  dangerous,  or  at  least  highly 
inconvenient,  to  compel  them  to  state  what  occurred  before  them 
in  court;  and  on  this  ground  the  grand  jury  have  been  advised 
not  to  examine  a  chairman  of  quarter  sessions,  as  to  what  a 
person  testified  in  a  trial  in  his  court.*  The  case  of  arbitrators 
is  governed  by  the  same  general  policy  ;  and  the  courts  will  not 
disturb  the  deliberate  decision  of  an  ai'bitrator,  by  requiring  him  to 
disclose  the  grounds  of  his  award,  unless  under  very  cogent  circum- 
stances, such  as  upon  an  allegation  of  fraud;  for  Interest  reipublicce 
ut  sit  finis  lifiiim.^  Of  course,  a  judge  or  an  arbitrator  may,  by 
his  own  consent,  be  examined  respecting  the  facts  proved,  or  the 
matters  claimed,  at  the  trial  or  the  reference;^  and  an  arbitrator 
may  be  asked  questions  for  the  purpose  of  showing  that  he  has 
exceeded  his  powers,  as,  for  instance,  by  awarding  compensation 
for  injuries  not  included  in  the  matters  submitted  to  him.'     With 


1  Turquand  v.  Knight,  2  M.  &  W.  98.  '^  Gr.  Ev.  ^  249,  in  part. 

3  R.  V.  E.  of  Thanet,  27  How.  St.  Tr.  845—848;  Ponsford  v.  Swaine, 
1  Johns.  &  Hem.  433. 

*  R.  V.  Gazard,  8  C.  &  P.  595,  per  Patteson,   J. 

^Johnson  v.  Durant,  4  C.  &  P.  327;  2  B.  &  Ad.  925,  S.  C. ;  Ellis  v. 
Saltan,  4  C.  &  P.  327,  n.  a  ;  Ponsford  v.  Swaine,  1  Johns.  &  Hem.  433; 
Story,  Eq.  PI.  ?^g  599,  824,  825,  u.;  2  Story,  Eq.  Jur.  U  1457,  1498;  Anon., 
3  Atk.  644. 

^  Martin  v.  Thornton,  4  Esp.  181,  per  Ld.  Alvanley. 

'  D.  of  Buccleuch  v.   Met.   Board  of  Works,   5  Law  Rep.,   H.   L.  418;   41 

(3676) 


CHAP.  XVI.]       SECRETS  OF  STATE — INFORMERS.  809 

respect  to  barristers,  it  has  been  held  that  they  cannot  be  forced 
to  prove  what  was  stated  by  them  on  a  motion  before  the  court;' 
and  the  like  privilege  has  been  strenuously  claimed,  though 
not  expressly  recognised,  where  a  counsel  was  called  upon  as 
a  witness  to  disclose  a  confidential  negotiation,  into  which,  on 
behalf  of  his  client,  he  had  entered  with  a  third  party,  though 
the  client  himself  waived  all  objection  to  the  course  of  examination 
proposed.' 


§  939.'  A  fourth  class  of  cases,  in  which  evidence  is  excluded  ^  ^^^^ 
from  motives  of  public  policy,  comprises  secrets  of  State,  or 
matters,  the  disclosure  of  which  would  be  prejudicial  to  the  public 
interest.  These  matters  are  such  as  concern  the  administration, 
either  of  penal  justice,  or  of  government;  but  the  principle  of 
public  safety  is  in  both  cases  the  same,  and  the  rule  of  exclusion 
is  applied  no  further  than  the  attainment  of  that  object  requires. 
Thus,  in  Crown  prosecutions,  and  in  informations  for  frauds 
committed  against  the  revenue  laws,  witnesses  for  the  Crown 
will  not,  on  cross-examination,  he  permitted  to  disclose  either  the 
names  of  their  employers,  or  the  natiu-e  of  the  connexion 
between  them,  or  the  names  of  the  person  from  whom  they 
received  information,  or  the  names  of  those  to  whom  they  gave 
information,  whether  such  last- mentioned  persons  were  magis- 
trates, or  actually  concerned  in  the  executive  administration, 
or  were  only  the  channel  through  which  the  communication  was 
made  to  Government.*  Neither  can  the  witness  be  asked  whether 
he  himself  was  the  informer.'^  "  It  is  perfectly  right,"  said  Lord 
Chief  Justice  Eyre,  in  Hardy's  case,'^  *'  that  all  opportunities 
should  be  afiforded  to  discuss  the  truth  of  the  evidence  given 
against  a   prisoner;    but   there   is   a   rule,  which  has  universally 


L.  J.,  Ex.   337,  per  Dom.  Proc,  S.  C;  5  Law  Rep.,  Ex.  221,  per  Ex.  Ch.;  39 
L.  J.,  Ex.  130,  S.  C;  3  Law  Rep.,  Ex.  306;  37  L.  J.,  Ex.  177,  S.  C. 

^  Curry  v.  Walter,  1  Esp.  456,  per  Eyre,  C.  J. 

2  Baillie's  case,  21  How.  St.  Tr.  358—361. 

'  Gr.  Ev.  §  250,  in  great  part. 

*  R.  V.  Watson,  32    How.   St.   Tr.  100—103;   2   Stark.  R.  135,   S.  C. ;  R.  v. 
Hardy,  24  How.  St.  Tr.  753,  808—820;  1  Ph.  Ev.  178—180. 

*  Att.-Gen.  v.  Briant,  15  M.  &  W.  169.  ^  24  How.  St.  Tr,  808. 

(3677) 


810  INFORMERS — CHANNELS  OF  INFORMATION.  [PART  II, 

obtained,  on  account  of  its  importance  to  the  public  for  the 
detection  of  crimes,  that  those  persons,  who  are  the  channel  by 
means  of  which  the  detection  is  made,  should  not  be  unnecessarily 
disclosed." 


§  940.  The  protection  afforded  by  this  rule  will  be  equally  I  BGl 
upheld,  though  the  witness,  in  his  examination  in  chief,  has 
admitted  that  suggestions  have  been  made  to  him  on  the  part  of 
the  Government;  ^  and  the  doctrine  has  been  even  carried  so  far, 
that,  where  a  witness,  believing  the  views  of  certain  parties  to  be 
dangerous  to  the  State,  had  consulted  a  private  friend  as  to  what 
steps  he  should  pursue,  and  the  friend  advised  him  to  communi- 
cate the  information  to  Grovernment,  a  majority  of  the  learned 
judges  held  that  the  name  of  his  friend  could  not  be  disclosed.^ 
They^  were  also,  in  the  same  case,  unanimously  of  the  opinion,  that 
all  questions  tending  to  the  discovery  of  the  channels  by  which  the 
information  was  given  to  the  oflficers  of  justice,  were,  upon  the 
general  principle  of  public  convenience,  to  be  suppressed;  that  all 
persons  in  that  situation  were  protected  from  the  discovery;  and 
that,  if  an  objection  were  raised  to  the  question,  it  was  no  more 
competent  for  the  defendant  to  ask  who  had  advised  the  witness  to 
give  information,  than  to  ask  to  whom  he  had  given  it  in  conse- 
quence of  that  advice,  or  to  put  any  other  question  respecting  the 
channel  of  communication.*  The  witness,  however,  may  still  be 
asked, — though  little  practical  advantage  can  be  gained  by  putting 
such  a  question, — whether  the  person  to  whom  the  information  was 
communicated  was  a  magistrate  or  not.^ 

§  941.  It  may  well  be  doubted  whether  this  rule  of  protection    §  862 
extends  to  ordinary  prosecutions;*  and  even  when  it  applies, — as 


'  E.  V.  O'Connell,  Arm.  &  T.  178,  179.     See,  also,  pp.  233,  240,  of  the  same 
report,  where  the  general  doctrine  was  recognised  and  acted  upon. 

2  R.   i:   Hardy,  21    How.    St.   Tr.  808—820,  Eyre,    C.    J.,   Hotham,  B.,  & 
Grose,  J.,  pro;  Macdonald,  C.  B.,  &  Buller,  J.,  con. 

3  Gr.  Ev.  ?  250,  in  part. 

*  24  How.  St.  Tr.  816,  per  Eyre.  C.  J.  *  Id   80P. 

fi  Att.-Gen.  v.  Briant,  15   M.  &  W.  181,  per  Pollock,  C.  B.;   R.  v.  Richard- 
son, 3  Post.  &  Fin.  693,  per  Cockburn,  C.  J. 

(3678) 


CHAP.  XVI.]  PROCEEDINGS  OF  GRAND  -JURORS.  811 

unquestionably  it  does  whenever  the  Government  is  directly  con 
cerned, — it  may  sometimes,  if  rigidly  enforced,  be  productive  of  great 
individual  hardship;  since,  where  a  witness  is  giving  an  account  of 
what  occurred  at  a  distant  period,  it  is  obviously  material  to  ascer 
tain  whether  he  gave  substantially  the  same  account  recently  after 
the  transaction;  and  if  the  object  be  to  shake  the  credit  of  the 
witness,  it  is  equally  important  to  know  whether  a  communication, 
which  he  asserts  that  he  made  to  a  certain  person,  was,  in  fact, 
ever  so  made.  On  the  other  hand,  it  is  absolutely  essential  to  the 
welfare  of  the  State,  that  the  names  of  parties  who  interpose  in 
situations  of  this  kind  should  not  be  divulged;  for  otherwise, — be  it 
from  fear,  or  shame,  or  the  dislike  of  being  publicly  mixed  up  in 
inquiries  of  this  nature, — few  men  would  choose  to  assume  the  dis- 
agreeable part  of  giving  or  receiving  information  respecting  offences, 
and  the  consequence  would  be  that  many  great  crimes  would  pass 
unpunished.* 

§  942.^  The  opinion  which  seems  best  supported  by  decided  cases  §  ^^3 
and  dicta,  is,  that  the  proceedings  of  grand  jurors  should,  on 
similar  grounds  of  public  policy,  be  regarded  as  privileged  commu- 
nications. Some  persons  imagine, — though  it  would  seem  errone- 
ously,— that  the  preliminary  inquiry  as  to  the  guilt  or  innocence  of 
a  party  accused  ought  to  be  secretly  conducted;^  and,  in  furtherance 
of  this  object,  every  grand  juror  is  sworn  to  secrecy.  One  reason 
may  be,  to  prevent  the  escape  of  the  party,  should  he  know  that 
proceedings  were  in  train  against  him;  another  may  be,  to  secure 
freedom  of  deliberation  and  opinion  among  the  grand  jurors,  which 
might  be  impaired  if  the  part  taken  by  each  could  be  made  known 
to  the  accused  or  to  the  Crown;  and  although  these  reasons  are 
clearly  fallacious,  since  the  first  is  answered  by  the  fact,  that  most 
crimes  are  primarily  investigated  by  an  open  inquiry  before  the 
committing  magistrate,  and  the  second  rests  on  an  assumption  of 
pusillanimity  and  meanness,  which   the  gentlemen  who  constitute 


'  Home  V.  Bentinck,  2  B.  &  B.   162,  per  Dallas,  C.  J.;  U.  S.  v.    Moses,  4 
Wash.  726.  "  Gr.  Ev.  I  252,  in  part. 

'  In  R.  V.  BuUard,  12  Cox,  353,   Byles,  J.,  observed,  that  "the   grand  jury- 
were  a  secret  tribunal,  and  not  bound  by  any  rules  of  evidence." 

(3679) 


812  PROCEEDINGS  OF  GRAND  JURORS.  [PABT  II. 

the  grand  jury  but  little  deserve;  still,  they  are  the  best  that  can 
be  furnished  in  support  of  a  system,  which  is  doubtless  often  pro- 
ductive of  perjury,  often  of  collusion,  and  sometimes  of  oppression.* 


§  943.  The  rule  includes  not  only  the  grand  jurors  themselves,  ?  8^3 
but  their  clerk,"  if  they  have  one,  and  the  prosecuting  officer,^  if  he 
be  present  at  their  deliberations;  all  these  being  equally  concerned 
in  the  administration  of  the  same  portion  of  penal  lavp.  They  are 
not  permitted  to  disclose  what  number  of  jurors  were  present  when 
a  case  was  brought  before  them,  or  the  number  or  names  of  the 
jurors  who  agreed  or  refused  to  find  the  bill  of  indictment;*  neither 
can  they  be  called  on  the  trial  to  explain  their  finding,^  or  to  detail 
the  evidence  on  which  the  accusation  was  founded,*^  or  to  show  that 
a  witness  has  given  testimony  in  court  contrary  to  what  he  had 
sworn  before  them/     In  an  action,  however,  for  a  malicious  indict- 

^  See  observations  on  this  subject,  and  on  the  general  inutility  of  grand 
juries,  in  Law  Mag.  vol.  xxxi.  pp.  242 — 251. 

2  12  Vin.  Abr.,  Ev.  B.  a.  5. 

^  So  decided  in  America,  Com.  i'.  Tilden,  cited  in  2  St.  Ev.  232,  n.  1,  by 
Metcalf;  ISI'Lellan  v.  Richardson,  1  Shepl.  82. 

*  E.  V.  Marsh,  6  A.  &  E.  236.  See  4  Hawk.  P.  C,  b.  2,  c.  25,  §  15.  In 
America,  grand  jurors  have  been  asked  whether  twelve  of  their  number  actually 
concurred  in  the  finding  of  a  bill,  the  certificate  of  the  foreman  not  being  con- 
clusive evidence  of  that  fact;  M'Lellan  v.  Eichardson,  1  Shepl.  82;  Low's  case, 
4  Greenl.  439;  Com.  v.  Smith,  9  Mass.  107. 

»  E.  V.  Cooke,  8  C.  &  P.  584,  per  Patteson,  J. 

«  See  E.  V.  Watson,  32  How.  St.  Tr.  107,  per  Ld.  Ellenborough,  and  6  A.  & 
E.  237,  arg. ;  Hindekoper  v.  Cotton,  3  Watts,  56;  M'Lellan  v.  Eichardson,  1 
Shepl.  82;  Low's  case,  4  Greenl.  439,  446,  453;  Burr's  trial  [Anon.]  Ev.  for 
deft.,  p.  2. 

'  12  Vin.  Abr.  Ev.  H. ;  Imlay  v.  Eogers,  2  Halst.  347.  Mr.  Chitty,  in  his 
1st  vol.  of  Crim.  Law,  p.  322,  states  that  perjury  before  the  grand  jury  is 
indictable,  and  refers  to  his  vol.  on  Prec,  which  contains  nothing  on  the 
subject.  Mr.  Christian,  also,  in  a  note  to  4  Bl.  Com.  126,  narrates  that, 
at  York,  a  grand  juror,  hearing  a  witness  swear  in  court  contrary  to  the 
evidence  which  he  had  given  before  the  grand  jury,  told  the  judge,  "  and 
the  witness  was  committed  for  perjury,  to  be  tried  uiion  the  testimony  of  the 
gentlemen  of  the  grand  jury."  What  became  of  this  case  does  not 
appear.  By  the  N.  York  Cr.  Code,  ?  267,  "Every  member  of  the  grand 
jury  must  keep  secret,  whatever  he  himself,  or  any  other  grand  juror  may 
have  said,  or  in  what  manner  he,  or  any  other  grand  juror,  may  have,  voted 
on  a  matter  before  them."  |  268.  "A  member  of  the  grand  jury  may, 
however,  be  required   by   any   court   to  disclose   the   testimony  of  a  witness 

(3680) 


CHAP.  XVI.]    PROPERTY  TAX  COMMISSIONERS — PETTY  JURORS.  813 

ment,  Lord  Kenyon  is  reported  to  have  allowed  the  plaintiff  to  call 
one  of  the  grand  jury,  in  order  to  prove  that  the  defendant  was  the 
prosecutor,'  and  a  similar  course  was  pursued  on  another  occasion 
without  opposition." 


§  944.  In  illustration  of  this  subject  it  may  be  added,  that  the  ?  863 
clerk  of  the  Property  Tax  Commissioners  has  been  held  bound  to 
produce  in  a  court  of  justice  his  official  books,  and  to  answer  all 
questions  respecting  the  collection  of  the  tax,  though  he  had  been 
sworn,  on  entering  office,  not  to  disclose  anything  he  should  learn 
in  that  capacity,  without  the  consent  of  the  Commissioners,  or 
unless  by  force  of  some  Act  of  Parliament.^ 

§  945.*  On  similar  grounds  of  public  policy,  and  for  the  pro-  ^  864 
tection  of  parties  against  fraud,  the  law  excludes  the  testimony  of 
traverse  or  petty  jurors,  when  offered  to  prove  mistake  or  viis- 
behaviour  by  the  jury  in  regard  to  the  verdict.  Thus,  where  a 
motion  was  made  to  amend  the  postea  by  increasing  the  damages, 
the  court  refused  to  admit  an  affidavit  sworn  by  all  the  jurymen,  in 
which  they  stated  their  intention  to  have  been  to  give  the  plaintiff 
such  increased  sum.^  So,  also,  on  several  occasions,  affidavits  that 
verdicts  have  been  decided  by  lot  have  been  rejected  on  motion  for 
new  trials,  whether  such  affidavits  were  sworn  by  individual  jury- 
men,**  or  by  strangers,  stating  the  subsequent  admissions  of  jurors 
to  themselves,^  or  even  that  a  declaration  had  been  made  by  one 


examined  before  the  grand  jury,  for  the  purpose  of  ascertaining  whether  it 
is  consistent  with  that  given  by  the  witness  before  the  court;  or  to  disclose 
the  testimony  given  before  them  by  any  person,  upon  a  charge  against  him 
for  perjury  in  giving  his  testimony,  or  upon  his  trial  therefor."  This  appears 
to  be  the  common-sense  view  of  the  matter. 

'  Sykes  v.  Dunbar,  2  Selw.  N.  P.  1081. 

2  Freeman  v.  Arkell,  1  C.  &  P.  137,  cor.  Park,  J. 

^  Lee  V.  Birrell,  3  Camp.  337,  per  Ld.  Ellenborough. 

*  Gr.  Ev.  §  252,  in  part.  ^  Jackson?'.  Williamson,  2T.  R.  281. 

^  Vasie  v.  Delaval,  1  T.  K.  11;  Owen  v.  Warburton,  1  N.  K.  326;  Heyes 
V.  Hindle,  per  Q.  B.  in  M.  T.,  1863,  MS.;  Little  v.  Larrabee,  2  Greenl.  37, 
41,  n. 

^  Straker  v.  Graham,  4  M.  &  W.  721 ;  The  State  v.  Freeman,  5  Conn.  348* 
Meade  v.  Smith,  16  Conn.  346. 

(3681) 


814  PROCEEDINGS  IN  PARLIAMENT — SECRETS  OF  STATE.    [PART  II. 

juror  ia  the  bearing  of  his  fellows  in  open  court  after  the  verdict 
had  been  pronounced.'  In  all  cases  of  this  kind,  the  court  must 
obtain  their  knowledge  of  the  misconduct  complained  of,  either  from 
the  officer  who  had  charge  of  the  jury,"  or  from  some  other  person 
who  actually  witnessed  the  transaction.'^  But,  although  a  juryman's 
affidavit  of  what  occurred  in  the  jury-box  during  the  trial  cannot  be 
received,  it  is  admissible  to  explain  the  circumstances  under  which 
he  came  into  the  box.* 


§  946.  On  a  like  principle  of  public  policy,  no  witness, — whether  §  865 
he  be  a  Peer,  a  Member  of  the  House  of  Commons,  an  officer  of 
either  House,  or  a  shorthand  writer, — can  be  forced,  without  the 
permission  of  the  House  having  been  first  obtained,  to  disclose  in  a 
court  of  justice  what  took  place  xcithin  the  walls  of  Parliament,  or 
to  relate  any  expressions  or  arguments  that  may  have  been  used  by 
one  of  the  members  in  the  course  of  debate;^  and  although  he 
may  probably  be  asked  as  to  the  fact,  whether  or  not  a  member 
spoke  upon  a  particular  subject  of  discussion,^  he  may  decline  to 
answer  any  question  relating  to  the  manner  in  which  the  votes 
were  given  on  a  division.' 

§  947.*  On  similar  grounds,  the  official  transactions  between  the  g  866 
heads  of  the  deparhnents  of  Government  and  their  subordinate 
officers,  are,  in  general,  treated  as  secrets  of  State.^  Thus,  commu- 
nications between  a  colonial  governor  and  his  attorney -general,  on 
the  condition  of  the  colony  or  the  conduct  of  its  officers,'"  or  between 
such  governor  and  a  military  officer  under  his  authority;"  the  re- 

1  Burgess  v.  Langley,  5  M.  &  Gr.  722;  Raphael  v.  Bk.  of  England,  17 
Com.  B.  161.  ^  5M.  &  Gr.  725,  per  Cresswell,  J. 

3  Vasie  v.  Delaval,  1  T.  R.  11,  per  Ld.  Mansfield. 

*  Bailey  t'.  Macauley,  13  Q.  B.  815,  829. 

*  Plunkett  V.  Cobbett,  29  How.  St.  Tr.  71,  72;  5  Esp.  136,  S.  C,  per  Ld. 
Ellenborougli;  Chubb  v.  Salomons,  3  C.  &  Kir.  75,  per  Pollock,  C.  B. 

6  Plunkett  V.  Cobbett,  29  How.  St.  Tr.  71,  72;  5  Esp.  136,  S.  C. 

^  Chubb  V.  Salomons,  3  C.  &  Kir.  75.  ®  Gr.  Ev.  ^  251 ,  in  great  part. 

^  By  the  N.  York  Civ.  Code,  §  1710,  r.  5,  "a  public  oificer  cannot  be 
examined  as  to  communications  made  to  him  in  official  confidence,  when  the 
public  interests  would  suffer  by  the  disclosure." 

1"  Wyattw.  Gore,  Holt,  N.  P.  R.  299. 

"  Cooke  V.  Maxwell,  2  Stark.  R.  183. 

(3682) 


CHAP.  XVI.]     BUSINESS  OF  DEPARTMENTS  OF  G0YERN:MENT.  815 

port  of  a  military  commission  of  inquiry,  made  to  the  commander- 
in-chief;  '  the  report  of  a  collision  at  sea,  made  by  the  captain  of  one 
of  the  ships  to  the  Lords  Commissioners  of  the  Admiralty ;  ^  the 
report  submitted  to  the  Lord  Lieutenant  of  Ireland  by  an  Inspector 
General  of  the  prisons ;  ^  and  the  correspondence  between  an  agent 
of  the  Government  and  a  Secretary  of  State;*  or  between  the 
Directors  of  the  East  India  Company  and  the  Board  of  Control, 
under  the  old  law;^  or  between  an  officer  of  the  Customs  and  the 
Board  of  Commissioners,** — are  confidential  and  privileged  matters, 
which  the  interest  of  the  State  will  not  permit  to  be  revealed.  The 
President  of  the  United  States,  and  the  Governors  of  the  several 
States,  are  not  bound  in  America  to  produce  papers  or  disclose 
information  communicated  to  them,  when,  in  their  own  judgment, 
the  disclosure  would,  on  public  considerations,  be  inexpedient.' 
And  the  same  doctrine,  as  it  would  seem,  prevails  in  England, 
whenever  Ministers  of  State  are  called  as  witnesses  for  the  purpose 
of  producing  public  documents.^ 

§  948.  If,  however,  the  Minister,  instead  of  attending  personally    ? 
at  the  trial,  should  send  the  required  papers  by  the  hands  of  a 
subordinate  officer,  the  judge  would  probably  examine  them  himself, 
and  would  compel  their  production,  unless  he   were   satisfied  that 
they  ought  on  public  grounds  to  be  withheld.^     When  the  law  is 


1  Home  V.  Bentinck,  2  B.  &  B.  130  ;  4  Moore,  563,  S.  C. ;  Beatsou  v. 
Skene,  29  L.  J.,  Ex.  430;  5  H.  &  N.  838,  S.  C;  Dawkins  v.  Ld.  Rokeby, 
8  Law  Rep.,  Q.  B.  255,  per  Ex.  Ch.;  42  L.  J.,  Q.  B.  63,  S.  C. 

2  H.  M.  S.  Bellerophon,  44  L.  J.,  Adm.  5. 

3  M'Elveney  v.  Connellan,  17  Ir.  Law  R.,  N.  S.  55. 

*  Anderson  v.  Hamilton,  2  B.  &  B.  156,  n.  ;  8  Price,  244,  n.;  and  4 
Moore,  533,  n.  S.  C;  2  Stark.  R.  185,  per  Ld.  Ellenborough,  cited  by  the 
Att.-Gen.;  Stace  v.  Griffith,  6  Moo.  P.  C,  N.  S.,  18;  Marbury  v.  Madison, 
1  Cranch,  144. 

5  Smith  V.  E.  India  Co.,  1  Phill.  50;  Rajah  of  Coorg  v.  East  India  Co.,  25 
L.  J.,  Ch.  345;  Wadeer  v.  E.  India  Co.,  8  De  Gex,  M.  &  G.  182. 

«  Black  V.  Holmes,  Fox  &  Sm.  28. 

^  1  Burr's  trial,  186,  187,  per  Marshall,  C.  J.;  Gray  v.  Pentland,  2  Serg. 
&  R.  23. 

»  Beatsnn  v.  Skene,  29  L.  J.,  Ex.  430;  5  H.  &  N.  838,  S.  C. 

9  Id.;  Dickson  v.  E.  of  Wilton,  1  Fost.  &  Fin.  425,  per  Ld.  Campbell. 
See,  however,  as  to  this  last  case,  Dawkins  ii.  Ld.  Rokeby,  8  Law  Rep.,  Q.  B. 
272,  273,  per  Kelly,  C.  J.,  pronouncing  the  judgment  of  the  Ex.  Ch. 

(3683) 


866 


816  INDECENT  EVIDENCE.  [pART  II. 

restrained  by  public  policy  from  enforcing  the  production  of  papers, 
the  like  necessity  restrains  it  from  doing  what  would  be  the  same 
thing  in  effect,  namely,  receiving  secondary  evidence  of  their  con- 
tents.' It  has,  however,  been  held,  that,  in  an  action  of  trespass 
brought  against  the  governor  of  a  colony,  a  military  officer  under 
his  control  might  be  asked  in  general  terms,  whether  he  did  not  act 
by  the  direction  of  the  defendant,  though  the  written  instructions 
could  not  be  given  in  evidence."  But  communications,  though 
made  to  official  persons,  are  not  privileged,  where  they  are  not  made 
in  the  discharge  of  any  public  duty;  such,  for  example,  as  a  letter 
by  a  private  individual  to  the  chief  secretary  of  the  postmaster- 
general,  complaining  of  the  conduct  of  the  guard  of  the  mail 
towards  a  passenger.^ 

§  949.*  The  law  excludes,  on  public  grounds,  a  fifth  species  of  §  867 
evidence,  namely,  that  which  is  indecent,  or  offensive  to  public 
morals,  or  injurious  to  the  feelings  of  third  persons;  the  parties 
themselves  having  no  interest  in  the  matter,  except  what  they  have 
impertinently  created.  The  mere  indecency  of  disclosures  does  not 
suffice  to  exclude  them,  where  the  evidence  if  necessary  for  the 
purpose  of  civil  or  criminal  justice;  as,  on  an  indictment  for  a  rape; 
or  on  a  question  upon  the  sex  of  one  claiming  an  estate  tail,  as 
heir  male  or  female;  or  upon  the  legitimacy  of  one  claiming  as 
lawful  heir;  or  on  a  petition  for  dissolution  of  marriage,  for  judicial 
separation,  or  for  damages  on  the  ground  of  adultery.^  In  these 
and  similiar  cases  the  evidence  is  necessary,  either  for  the  proof  and 
punishment  of  crime,  or  for  the  vindication  of  rights  existing 
before,  or  independent  of,  the  fact  sought  to  be  disclosed.  But 
where  the  parties  have  impertinently  interested  themselves  in  a 
question,  tending  to  violate  the  peace  of  society  by  exhibiting  an 
innocent  third  person  in  a  ridiculous  light,  or  to  disturb  his  peace 


'  Gray  v.  Pentland,  2  Serg.  &  R.  23,  31,  32,  per  Tilghmau,  C.  J.,  cited  with 
approbation  in  Yoter  v.  Sanno,  6  Watts,  166,  per  Gibson,  C.  J.  See,  also, 
Stace  V.  Griffith,  6  Moo.  P.  C,  N.  S.  18,  and  see  ante,  ^  918. 

2  Cooke  V.  Maxwell,  2  Stark.  R.  183,  per  Bayley,  J. 

*  Blake  v.  Pilford,  1  M.  &  Rob.  198. 

*  Gr.  Ev.  ^  253,  almost  verbatim. 

s  See  20  &  21  V.,  c.  85,  U  16,  27,  33. 

(3684) 


CHAP.  XVI.]         now  FAR  PARENTS  CAN  BASTARDIZE  ISSUE.  817 

and  comfort,  or  to  offend  public  decency  by  the  disclosures  which 
its  decision  may  require,  the  evidence  will  not  be  received.  Of  this 
sort  are  wagers '  or  contracts  respecting  the  sex  of  a  third  person,^ 
or  upon  the  question  whether  an  unmarried  woman  has  had  a  child.* 

§  950.  In  like  manner,  when  the  legitimacy  of  a  child  is  the  I  8^8 
question  in  dispute,  the  testimony  of  the  parents,  that  they  have  or 
have  not  had  connexion,  has, — on  the  same  grounds  of  decency, 
morality,  and  policy, — been,  until  recent  times,  uniformly  rejected 
by  the  judges.*  This  rule, — which,  it  now  seems,^  has  not  been 
indirectly  superseded,  either  by  §  3  of  the  Act  of  32  &  33  Vict, 
c.  68,*^  or  by  two  modern  decisions,'  which  were  at  one  time 
supposed  to  have  had  that  effect, — excludes  not  only  all  direct 
questions  respecting  access,  but  all  questions  which  have  a  ten- 
dency to  prove  or  disprove  that  fact,  unless  they  are  put  with  a 
view  to  some  different  point  in  the  cause; ^  and  it  applies  to  the 
depositions  of  the  parents  equally  with  their  viva  voce  testimony.^ 

1  No  wager  is  now  recoverable,  8  &  9V.,  c.  109,  §  18.  See  Higginson  v. 
Simpson,  46  L.  J.,  C.  P.  192;  Diggle  v.  Higgs,  L.  R.,  2  Ex.  D.  422;  Hampden 
V.  Walsh,  L.  R.,  1  Q.  B.  D.  189;  Read  v.  Anderson,  L.  R.,  10  Q.  B.  D.  100;  52 
L.  J.,  Q.  B.  214,  S.  C,  per  maj.  in  Ct.  of  App.,  53  L.  J.,  Q.  B.  532;  Trimble  v. 
Hill,  L.  R.,  5  App.  Cas.  342,  per  Pr.  C;  49  L.  J.,  Pr.  C.  49,  S.  C. 

^  Da  Costa  v.  Jones,  2  Cowp.  729. 

*  Ditchburn  v.  Goldsmith,  4  Camp.  152.  If  the  subject  of  the  action  is  friv- 
olous, or  the  question  impertinent,  and  this  is  apparent  on  the  record,  the  court 
will  not  proceed  at  all  in  the  trial.  Brown  v.  Leeson,  2  H.  Bl.  43;  Henkin  v. 
Gerss,  2  Camp.  408.     But  see  Hussey  v.  Crickett,  3  Camp.  1G8. 

*  Goodright  v.  Moss,  2  Cowp.  594;  Legge  v.  Edmonds,  25  L.  J.,  Ch.  125; 
Cope  V.  Cope,  1  M.  &  Rob.  269,  272—274,  per  Alderson,  B. ;  5  C.  &  P.  604,  S. 
C. ;  Wright  v.  Holdgate,  3  C.  &  Kir.  158,  per  Cresswell,  J.;  R.  r.  Luffe,  8  East, 
193,  202,  203;  R.  v.  Rook,  1  Wils.  340;  R.  v.  Reading,  Cas.  temp.  Hardw.  79; 
R.  V.  Mansfield,  1  Q.  B.  444;  1  G.  &  D.  7  S.  C;  Anon.  v.  Anon.,  22  Beav. 
481;  23  Beav.  273,  S.  C,  giving  a  more  accurate  note  of  the  judgment;  Com.  v. 
Shepherd,  6  Binn.  283.     See  ante,  ?  649. 

^  Guardians  of  Nottingham  v.  Tomkinson,  L.  R.,  4  C.  P.  D.  343;  48  L.  J., 
M.  C.  171,  S.  C.  "  Cited  post,  ^  1355. 

'  In  re  Rideout's  Trusts,  10  Law  Rep.,  Eq.  41;  39  L.  J.,  Ch.  192,  S.  C;  Re 
Yearwood's  Trusts,  46  L.  J.,  Ch.  478,  per  Hall,  V.-C. ;  L.  R.,  5  Ch.  D.  545,  S.  C. 

«  Wright  V.  Holdgate,  3  C.  &  Kir.  158;  R.  v.  Sourton,  5  A.  &E.  180,  185, 188, 
189.  In  this  last  case,  with  the  view  of  proving  non-access,  the  father  was 
asked  whether,  at  a  particular  time,  he  did  not  live  100  miles  from  his  wife, 
and  cohabit  with  her  sister.     Held,  this  question  could  not  be  put. 

^  Goodright  v.  Moss,  2  Cowp.  592,  per  Ld.  Mansfield;  Cope  v.  Cope,  1  M.  & 
Rob.  272—274,  per  Alderson,  B.;  Atchley  v.  Sprigg,  3  New  R.  360;  33  L.  J., 
Ch.  345,  S.  C.  ;per  Kindersley,  V.-C,  explaining  Plowes  v.  Bossey,  31  L.  J., 
Ch.  601;  Re  R— 's  Trusts,  39  L.  J.,  Ch.  192. 

(3685) 


818  HOW  FAR  PARENTS  CAN  BASTARDIZE  ISSUE.  [PART  II. 

Neither  is  it  affected  by  the  circumstance,  that,  at  the  time  of  the 
examination  of  one  of  the  parents,  the  other  is  dead;  because  the 
rule  has  been  established,  not  simply  on  the  ground  that  the  ' 
tendency  of  such  evidence  is  to  promote  connubial  dissension,  but 
on  the  broad  basis  of  general  public  policy.'  But  this  rule  does 
not  preclude  the  parents  from  proving  that  the  supposed  marriage 
was  either  invalid,"  or  valid,^  or  that  their  children  were  born  before 
or  after  its  celebration,  though  the  effect  of  such  evidence  is,  in  the 
first  and  third  case,  to  bastardize  the  issue,  and,  in  the  others,  to 
establish  its  legitimacy. ■*  For  this  purpose,  too,  their  declarations 
or  their  old  answers  in  Chancery  are  admissible  evidence.^ 

§  951.  It  is  clear,  also,  that  in  a  case  of  bastardy,  a  married  I 
woman  may,  when  the  fact  of  her  husband's  non-access  has  already 
been  proved  by  independent  evidence,  confess  her  adulterous  con- 
nexion with  another  person,  and  thus  enable  the  justices,  in  the 
event  of  her  testimony  being  corroborated  in  some  material  par- 
ticular,^ to  make  the  order  of  maintenance.'  But  this  exception  to 
the  general  rule  of  exclusion  is  founded  on  necessity;  since  the 
fact,  to  which  she  is  permitted  to  testify,  is  probably  within  her 
own  knowledge  and  that  of  the  adulterer  alone. ^  It  may  here  be 
added, — as  the  point  has  been  considered  worthy  of  discussion, — 
that  in  an  action  against  a  husband  for  the  price  of  necessaries 
supplied  to  his  wife  while  living  alone,  the  wife  is  an  admissible 
witness  for  the  defendant  to  prove  that  she  has  committed  adultery, 
and  that,  consequently,  the  defendant  is  not  responsible  for  her 
maintenance."  Such  evidence,  though  strictly  legal,  is  of  coiu-se 
open  to  comment,  not  only  as  coming  from  a  polluted  source,  but 
as  the  possible  result  of  collusion  between  the  husband  and  the  wife 
for  the  purpose  of  defeating  the  plaintiff's  claim.'" 


1  E.  V.  Kea,  11  East,  132.  "  In  re  Darcys,  11  Ir.  Law  R.,  N.  S.  298. 

»  R.  V.  Bramley,  6  T.  R.  330;  Standen  v.  Standen,  Pea.  R.  32. 

*  Goodright  v.  Moss,  2  Cowp.  591,  and  the  cases  referred  to  in  Ld.  Mans- 
field's judgment,  593,  594.  *  Id. 

«  35  &  36  v.,  c.  65,   ?  4;  .36  V.,  c.  9,  ^  5;  8  &  9  V.,  c.  10,  |  6. 

'  R.  V.  Reading,  Cas.   temp.   Hardw.  79;  1  Bott,  439,  S.  C. ;  Cope  v.  Cope,  1 
M.  &  Rob.  273,  n.  a;  Legge  v.  Edmonds,  25  L.  J.,  Ch.  125. 

^  R,  V.  Luife,  8  East,  293,  per  Ld.  Ellenborough.^ 

»  Cooper  V.  Lloyd,  6  Com.  B.,  N.  S.  519.  ^'>  Id.  525,  per  Willes,  J. 

(3686) 


868 


CHAP.  XVII.]      TWO  WITNESSES  REQUIRED  TO  PROVE  TREASON.  819 


CHAPTER  XVII. 

MATTERS    NOT    PROVABLE    BY    A    SINGLE    WITNESS. 

§  952.'  Under  this  head  it  is  not  proposed  to  go  into  an  ex-  i  869 
tended  consideration  of  the  Statutes  of  Treason,  but  only  to 
mention  briefly  some  instances  in  which  those  Acts,  and  some  other 
statutes  and  rules  of  law,  have  regulated  particular  cases,  taking 
them  out  of  the  operation  of  the  general  principles,  by  which  they 
would  otherwise  be  governed.  Thus,  in  regard  to  treason  and 
misprision  of  treason,  though  by  the  common  laAV  these  crimes 
were  sufficiently  proved  by  one  credible  witness,^  it  has  been 
deemed  expedient  to  enact,  that  no  person  shall  be  indicted,  tried, 
or  attainted  thereof,  but  upon  the  oaths  and  testimony  of  two 
laivful  witnesses,  either  both  to  the  same  overt  act,  or  one  to  one 
and  the  other  to  another  overt  act  of  the  same  treason,  unless  the- 
accused  shall  willingly  without  violence,  in  open  court,  confess, 
the  same  ;^  and  further,  that  if  two  or  more  distinct  treasons- 
of  divers  heads  or  kinds  shall  be  alleged  in  one  indictment,  one- 
witness  produced  to  prove  one  of  these  treasons,  and  another 
another,  shall  not  be  deemed  to  be  two  witnesses  to  the  same 
treason.* 

§  953.  This  protective  rule, — which  in  England  has  remained    §  870 
in  its  present  state  since  the.  days  of  King  William  III.,  and  in 
Ireland  was  adopted  in  the  year  1821, — has  been  incorporated,  with 
some  slight  variation,  into  the  constitution   of  America,^  and  may 

>  Gr.  Ev.  I  255,  in  part. 

2  Fost.  C.  L.  233;  M'Nally,  Ev.  31;  R.  v.  Clare,  28  How.  St.  Tr.  887,  924; 
Woodbeck  v.  Keller,  6  Cowen,  120. 

*  As  to  the  confession,  see  ante,  ?  866. 

*  7  W.  3,  c.3,U  2,  4,  extended  to  Ireland  by  1  &  2  G.  4,  c.  24. 

*  "  No  person  stiall  be  convicted  of  treason,  unless  on  the  testimony  of  two 
witnesses  to  the  same  overt  act,  or  on  confession  in  open  court. ' '  Const.  U.  S. 
Art.  3,  ?  3;  Laws  U.  S.,  vol.  2,  ch.  36,  ^  1. 

31   LAW  OF  EVID.— V.  II.  (3687) 


820  TWO  WITNESSES   REQUIRED  TO  PROVE  TREASON.      [pART  II, 

be  met  with  in  the  statutes  of  most,  if  not  all,  of  the  States  in  the 
Union.  The  first  notice  that  we  have  of  this  rule,  is  in  a  repealed 
Act  of  the  time  of  Henry  VIII.,  '  and  from  the  language  there 
employed  it  appears  probable,  that  the  original  reason  for  its 
adoption  was  that  stated  by  Lord  Nottingham  on  Lord  Strafford's 
trial: — "  Anciently  all  or  most  of  the  judges  were  churchmen  and 
ecclesiastical  persons,  and  by  the  canon  law,  now  and  then  in  use 
all  over  the  Christian  world,  none  can  be  condemned  of  heresy  but 
by  two  lawful  and  credible  witnesses;  and  bare  words  may  make  a 
heretic,  but  not  a  traitor,  and,  anciently,  heresy  was  treason  ;  and 
from  thence  the  Parliament  thought  fit  to  appoint,  that  two  wit- 
nesses ought  to  be  for  proof  of  high  treason."  ^ 

§  954.  Its  continuance  in  modern  times  may  perhaps  be  ascribed,  ?  871 
in  part,  to  the  obstinacy  with  which  men  cling  to  established 
forms  of  proceeding;  in  part,  to  the  duty  of  allegiance,  which  may 
be  supposed  to  counterpoise  the  information  of  a  single  witness;^ 
and,  in  part,  to  the  heinousness  of  the  crime  of  treason,  which 
raises  a  presumption  of  innocence  in  favour  of  the  accused,  while 
the  counter- presumption,  that  on  so  serious  a  trial  no  witness 
would  be  guilty  of  criminative  perjury  is  forgotten.*  But,  possibly, 
the  best  reason  for  the  regulation  is,  that,  on  state  trials,  the 
prisoner  has  to  contend  against  the  whole  power  of  the  Crown; 
that  this  power  is  especially  liable  to  abuse  in  times  of  excite- 
ment and  danger;  that  the  law  of  treason  is  ill-defined,  and  worse 
understood;  and  that  the  consequences  of  a  conviction,  both  to  the 
accused  and  to  his  family,  were,  until  very  recently,'^  savage  and 
revolting. 

§  955.  Notwithstanding  the  above*  rule,  any  collateral  matter,    §  872 
not  conducing  to  the  proof  of  the  overt  acts,  may  be  proved  by 
the  testimony  of  a  single  witness,  by  the  extrajudicial   confession 
of  the  prisoner,  or  by  other  evidence  admissible  at  common  law.'' 


^  25  H.  8,  c.  14.  '  T.  Ray.  208. 

3  4  Bl.  Com.  358. 

*  3  Benth.  Ev.  391,  392. 

6  33  &  34  v.,  c.  23,  U  1,  31. 

6  Fost.  C.  L.  242;  1  East,  P.  C.  130. 

(36as) 


CHAP.  XVII.]       PROOF  CONFINED  TO  OVERT  ACTS  CHARGED.  821 

For  instance,  on  an  indictment  for  treason  in  adhering  to  the 
Queen's  enemies,  the  fact  that  the  prisoner  is  a  subject  of  the 
British  Crown  may  be  established  by  his  admission,  or  by  the 
testimony  of  one  witness.^ 


§  956.^  In  treason  and  misprision  of  treason,  no  evidence  can  ^  873 
be  given  of  any  overt  act  which  is  not  expressly  laid  in  the 
indictment.^  But  the  meaning  of  this  rule  is,  not  that  the  whole 
detail  of  facts  shall  be  set  forth,  but  that  no  overt  act  amounting 
to  a  distinct  independent  charge,  though  falling  under  the  same 
head  of  treason,  shall  be  given  in  evidence,  unless  it  be  expressly 
laid  in  the  indictment,  or  unless  it  conduce  to  the  proof  of  any  of 
the  overt  acts,  which  are  laid.*  For  instance,  in  Layer's  case,^  the 
prisoner's  correspondence  with  the  Pretender  was  allowed  to  be 
read  in  evidence,  as  tending  directly  to  prove  one  overt  act  laid 
namely,  the  conspiring  to  depose  the  King  and  to  place  the 
Pretender  on  the  throne,  though  this  correspondence  was  a  sub- 
stantive treason  in  itself,*^  and  was  not  charged  as  an  overt  act  in 
the  indictment;  and,  on  the  same  ground,  the  publication  of  the 
Pretender's  manifesto  by  Mr.  Deacon  was  read  against  him  in  1746, 
as  strongly  proving  with  what  intention  he  had  joined  the  rebel 
army,  and  as  supporting  the  overt  act  laid  in  the  indictment  of 
marching  in  a  warlike  manner  to  depose  the  King.'  On  the  other 
hand,  when  Captain  Vaughan  was  indicted  for  adhering  to  the 
King's  enemies,  and  the  overt  act  laid  was  his  cruising  on  the 
King's  subjects  in  the  Loyal  Clancarty,  the  court  rejected  evidence 
of  his  cruising  in  another  vessel;  as,  if  it  were  true,  it  would  be  no 
sort  of  proof  of  the  act  for  which  he  was  then  to  answer.^ 


1  R.  r.  Vaughan,  15   How.  St.  Tr.  535,  per  Ld.  Holt;   Fost.  C.  L.  240,  S.  C. 

^  Gr.  Ev.   I  256,  in  part  as  to  first  six  lines. 

^  7  W.  3,  c.  3,  §  8.  This  sect,  is  not  incorporated  in  the  Irish  Act  of  1  &  2 
G.  4,  c.  24,  but  as  the  rule  is  also  recognized  at  common  law,  this  would  seem 
to  be  immaterial. 

*  Fost.  C.  L.  245;  1  East,  P.  C.  121—123. 

5  16  How.  St.  Tr.  220—223;  Fost.  C.  L.  245,  246,  S.  C. 

«  By  13  W.  3,  c.  3,  §  2. 

■^  R.  v.  Deacon,  Fost.  C.  L.  9;  18  How.  St.  Tr.  366,  S.  C;  R.  v.  Wedder- 
burn,  Fost.  C.  L.  22;  18  Hoav.  St.  Tr.  425,  S.  C. 

»  R.  V.  Vaughan,  15  How.  St.  Tr.  499,  500;  Fost.;  C.  L.  246,  S.  C. 

(3689) 


822  PROOF  CONFINED  TO  OVERT  ACTS  CHARGED.  [PART  II. 

§  957.'  This  rule  is  not  peculiar  to  trials  for  treason;  though, 
in  consequence  of  the  oppressive  character  of  some  former  prose 
cutions  for  that  crime,  it  has  been  deemed  expedient  expressly 
to  enact  it  in  the  later  statutes  of  treason.  It  is  nothing  more 
than  a  particular  application  of  the  well  known  doctrine,  that  the 
proof  must  correspond  with  the  allegations,  and  be  confined  to 
the  point  in  issue.^  The  issue  in  treason  is,  whether  the  prisoner 
committed  that  crime  by  doing  one  or  more  of  the  treasonable 
acts  stated  in  the  indictment;  as  in  defamation  the  question  is, 
whether  the  defendant  injured  the  plaintiif  by  maliciously  uttering 
any  of  the  slanders  laid  in  the  statement  of  claim;  and  evidence  of 
collateral  facts  is  admitted  or  rejected  on  the  like  principle,  in  either 
case,  according  as  it  does  or  does  not  tend  to  establish  the  specific 
charge.  Therefore  the  declarations  of  the  prisoner,  and  seditious 
language  used  by  him,  are  admissible  in  evidence  as  explanatory 
of  his  conduct,  and  of  the  nature  and  object  of  the  conspiracy  in 
which  he  was  engaged.^  And  in  support  of  the  overt  act  of  treason 
in  the  county  mentioned  in  the  indictment,  other  acts  of  treason, 
though  done  in  other  counties,  may  be  given  in  evidence;  subject, 
however,  to  be  ultimately  rejected,  if  the  overt  act,  in  corroboration 
of  which  they  are  tendered,  is  not  proved  to  have  been  done  in  the 
county  as  laid.* 


§  958.  It  remains  to  be  noticed  in  connexion  with  this  subject, 
that  the  protective  provisions  of  the  Statutes  of  Treason^  do  not 
apply  to  the  particular  class  of  treasons,  which  consists  in  com- 
passing or  imagining  the  death  or  destruction,  or  any  bodily  harm 
tending  to  the  death  or  destruction,  maiming  or  wounding,  of  the 
Queen,  where  the  overt  act  or  acts  alleged  shall  be  the  assassina- 
tion of  her  Majesty,  or  any  attempt  to  injure  in  any  manner  what- 
soever her  Royal  person;  or  to  the  misprisions  of  any  such  treason; 
but   in   all   the   cases   the    accused   shall  be  indicted,   arraigned, 


»  Gr.  Ev.  ?  256,  in  part.  ^  Ante,  ^  218,  298. 

'  R.  V.  Watson,  2  Stark.  R.  132—135. 

*  R.  V.  Layer,  16  How.  St.  Tr.  164;  R.  v.  Deacon,  18  id.  367;    Fost.  C.  L. 
9,  10,  S.  C;  R.  V.  Vane,  6  How.  St.  Tr.  123—129;  1  East,  P.  C.  125,  126. 
6  7  A.  c.  21;  7  W.  3,  c.  3 ;  6  G.  3,  c.  53,  §  3. 

(3690) 


CHAP,  XVII.]        NUMBER  OF  WITNESSES  TO  PROVE  PERJURY.  823 

tried  and  attainted,  in  the  same  manner,  and  according  to  the 
same  course  and  order  of  trial,  and  upon  the  like  evidence,  as  if  he 
stood  charged  with  murder;  though  upon  conviction,  judgment 
shall  be  given,  and  execution  done,  as  in  other  cases  of  high 
treason.' 


§  959.^  It  seems  to  have  been  formerly  thought,  that,  in  proof  ^  876 
of  the  crime  of  perjury,  two  witnesses  were  necessary;^  but  this 
strictness,  if  it  was  ever  the  law,  has  long  since  been  relaxed;  the 
true  principle  of  the  rule  being  merely  this,  that  the  evidence 
must  be  something  more  than  sufficient  to  counterbalance  the 
oath  of  the  prisoner,  and  the  legal  presumption  of  his  innocence.* 
The  oath  of  the  opposing  witness,  therefore,  will  not  avail,  unless 
it  be  corroborated  by  material  and  independent  circumstances; 
for  otherwise,  there  would  be  nothing  more  than  the  oath  of  one 
man  against  another,  and  the  scale  of  evidence  being  thus  in  one 
sense  balanced,  it  is  considered  that  the  jury  could  not  safely 
convict.^  So  far  the  rule  is  founded  on  substantial  justice.* 
But  it  is  not  precisely  accurate  to  say,  that  the  corroborative  cir- 
cumstances must  be  tantamount  to  another  witness;  for  they  need 
not  be  such  as  that  proof  of  them,  standing  alone,  would  justify  a 
conviction,  in  a  case  where  the  testimony  of  a  single  witness  would 
suffice  for  that  purpose.^  Thus,  a  letter  wi'itten  by  the  defendant, 
contradicting  his  statement  on  oath,  will  render  it  unnecessary  to 
call  a  second  witness.*     Still,   evidence  confirmatory  of  the  single 


'  39  &  40  G.  3,  c.  93;  1  &  2  G.  4,  c.  24,  ^2,  Ir.;  5  &  6  V.,  c.  51,  ^  1.  §  2 
of  this  last  Act  makes  it  a  higli  misdemeanor  to  discharge  or  aim  fire-arms,  or 
throw  or  use  any  offensive  matter  or  weapon,  with  intent  to  injure  or  alarm 
her  Majesty.  2  Qj._  ^.v   ^  257,  in  part. 

^  This  is  said  to  have  been  the  opinion  of  Ld.  Tenterden;  3  St.  Ev.  860,  n.  q.; 
'  R.  V.  Champney,  2  Lew.  C.  C.  259,  per  Coleridge,  J. 

*  See  E.  t;.  Lee,  cited  2  Euss.  C.  &  M.  650. 

*  4  Bl.  Com.  358;  E.  v.  Gaynor,  1  Crawf.  &  D.,  C.  C.  142;  Jebb,  C.  C.  362,  S. 
C;  E.  V.  Braithwaite,  8  Cox,  254,  444,  per  Watson,  B.,  and  Hill,  J.;  1  Fost.  & 
Fin.  638,  S.  C. 

«  E.  V.  Yates,  C.  &  Marsh,  139,  per  Coleridge,  J. 

'  E.  V.  Gardiner,  8  C.  &  P.  737,  per  Patteson,  J. ;  2  Moo.  C.  C.  95,  S.  C. ;  E. 
V.  Shaw,  L.  &  Cave,  579;  10  Cox,  66;  34  L.  J.,  M.  C.   169,  S.  C. 

*  R.  V.  May  hew,  6  C.  &  P.  315,  per  Ld.  Denman.  See,  also,  E.  v.  Towey,  8 
Cox,  328. 

(3691) 


824  AMOUNT  OF  PROOF  IN  CASES  OF  PEIUURY.  [PAET   II. 

accusing  witness  in  some  slight  particulars  only,  will  not  be 
sufficient  to  warrant  a  conviction;  '  but  it  must  at  least  be 
strongly  corroborative  of  his  testimony;"  or,  to  use  the  quaint  but 
energetic  language  of  Chief  Justice  Parker,  "  a  strong  and  clear 
evidence,  and  more  numerous  than  the  evidence  given  for  the 
defendant."' 


§  960.*  When  several  assignments  of  perjury  are  included  in  ^  H77 
the  same  indictment,  it  does  not  seem  to  be  clearly  settled, 
whether,  in  addition  to  the  testimony  of  a  single  witness,  corro-  » 
borative  proof  must  be  given  with  respect  to  each;  but  the  better 
opinion  is  that  such  proof  is  necessary;  and  that  too,  although  all 
the  perjuries  assigned  were  committed  at  one  time  and  place.^ 
For  instance,  if  a  person,  on  putting  in  his  schedule  in  the 
Bankruptcy  Court,  or  on  other  the  like  occasion,  has  sworn 
that  he  has  paid  certain  creditors,  and  is  then  indicted  for  perjury 
on  several  assignments,  each  specifying  a  particular  creditor  who 
has  not  been  paid,  a  single  witness  with  respect  to  each  debt  will 
not,  it  seems,  suffice,  though  it  may  be  very  difficult  to  obtain  any 
fuller  evidence.*^ 

§  961.^     The   principle,    that   one  witness,   with    corroborating    g  878 
circumstances,    is   sufficient  to    establish    the   charge  of    perjury, 
leads  to  the  conclusion,  that  icithout  any  icitness    directly  to  dis- 
prove   tvliat  is  sworn,  circumstances  alone,   when  they  exist  in  a 


'  R.  V.  Yates,  C.  &  Marsh.  139,  per  Coleridge,  J.;  E.  v.  Boulter,  2  Den.  396; 
3  C.  &  Kir.  236,  S.  C. 

=  R.  V.  Champney,  and  R.  v.  Wigley,  2  Lew.  C.  C.  258,  259,  n.,  per  Cole- 
ridge, J.;  Jorden  v.  Money,  5  H.  of  L.  Cas.  231,232,  per  Ld.  Brougham; 
Woodheck  v.  Keller,  6  Cowen,  118,  121,  per  Sutherland,  J. 

2  E.  V.  Muscot,  10  Mod.  194.  See  The  State  v.  Molier,  1  Dev.  263,  265;  The 
State  V.  Hayward,  1  Nott  &  M'C.  547;  Clark's  Exors.  v.  Van  Reimsdyk,  9 
Cranch.,  160.  *  Gr.  Ev.  §  257  a,  nearly  verbatim. 

»  E.  V.  Virrier,  12  A.  &  E.  324,  per  Ld.  Denman.  But  see  R.  v.  Hare,  13 
Cox,  174. 

«  R.  V.  Parker,  C.  &  Marsh.  639,  645—647,  per  Tindal,  C.  J.  In  E.  v.  Mudie, 
1  M.  &  Eob.  12s,  129,  Ld.  Tenterden,  under  similar  circumstances,  refused  to 
stop  the  case,  saying  that  if  the  defendant  was  convicted  he  might  move  for  a 
new  trial.     He  was,  however,  acquitted. 

'  Gr.  Ev.  ^  258,  in  part. 

(3692) 


CHAP.  XVII.]    WHAT  EVIDENCE  NECESSARY  TO  PROVE  PERJURY,  825 

documentary  shape,  may  combine  to  the  same  effect;  as  they  may 
combine,  though  altogether  unaided  by  oral  proof,  except  the 
evidence  of  their  authenticity,  to  prove  any  other  fact  connected 
with  the  declarations  of  persons  or  the  business  of  life.  In 
accordance  with  these  views,  it  has  been  held  in  America  that  a 
man  may  be  convicted  of  perjury  on  documentary  and  circum- 
stantial evidence  alone, — first,  where  the  falsehood  of  the  matter 
sworn  to  by  him  is  directly  proved  by  written  evidence  springing 
from  himself,  with  circumstances  showing  the  corrupt  intent ; 
secondly,  where  the  matter  sworn  to  is  contradicted  by  a  public 
record,  proved  to  have  been  well  known  to  the  prisoner  when  he 
took  the  oath;  and  thirdly,  where  the  party  is  charged  with  taking 
an  oath,  contrary  to  what  he  must  necessarily  have  known  to  be 
true;  the  falsehood  being  shown  by  his  own  letters  relating  to  the 
fact  sworn  to,  or  by  any  other  writings,  which  are  found  in  his 
possession,  and  which  have  been  treated  by  him  as  containing  the 
evidence  of  the  fact  recited  in  them.' 


§  962.^  If  the  evidence  adduced  in  proof  of  the  crime  of  perjury  §  ^79 
consists  of  tiL'o  opposing  statements  by  the  prisoner,  and  nothing 
more,  he  cannot  be  convicted.  For  if  one  only  was  delivered 
under  oath,  it  must  be  presumed,  from  the  solemnity  of  the 
sanction,  that  the  declaration  was  the  truth,  and  the  other  an 
error,  or  a  falsehood;  though  the  latter,  being  inconsistent  with 
what  he  has  sworn,  may  form  important  evidence,  with  other 
circumstances  against  him.^  And  if  both  the  contradictory  state- 
ments were  delivered  under  oath,  there  is  still  nothing  to  show 


1  U.  S.  V.  Wood,  14  Pet.  430,  440—442.  In  this  case,  under  the  hitter  head 
of  the  rule  here  stated,  it  was  held  that,  if  the  jury  were  satisfied  of  the  corrupt 
intent,  the  prisoner  might  well  be  convicted  of  perjury  in  taking,  at  the 
custom-house  in  New  York,  the  "  owner's  oath  in  cases  where  goods,  wares,  or 
merchandise  have  been  actually  purchased,"  upon  the  evidence  of  the  invoice^ 
book  of  his  father,  John  Wood,  of  Saddleworth,  Eng.,  and  of  thirty-five  letters 
from  the  prisoner  to  his  father,  disclosing  a  combination  between  them  to 
defraud  the  Government  of  the  United  States,  by  invoicing  and  entering  the 
goods  shipped  at  less  than  their  actual  cost.  The  whole  of  this  case  deserves 
an  attentive  perusal. 

'^  Gr.  Ev.  g  259,  in  great  part. 

^  See  Alison,  Cr.  L.  481. 

(3693) 


826  WHAT  EVIDENCE  NECESSARY  TO  PROVE  PERJURY.       [pAET  II. 

which  of  them  is  false,  when  no  other  evidence  of  the  falsity  is 
given.'  If,  indeed,  it  can  be  shown  that,  before  making  the 
statement  on  which  perjury  is  assigned,  the  accused  had  been 
tampered  with,"  or  if  any  other  circumstances  tend  to  prove  that 
the  statement  offered  as  evidence  against  the  prisoner  was  true,  a 
legal  conviction  may  be  obtained;  ^  and  provided  the  nature  of  the 
statements  was  such,  that  one  of  them  must  have  been  false  to 
the  j)risoner''s  knoivledge,  slight  corroborative  evidence  would  pro- 
bably be  deemed  sufficient.  But  it  does  not  necessarily  follow 
that  because  a  man  has  given  contradictory  accounts  of  a  trans- 
action on  two  occasions,  he  has  therefore  committed  perjury. 
For  cases  may  well  be  conceived  in  which  a  person  might  very 
honestly  swear  to  a  particular  fact,  from  the  best  of  his  recol- 
lection and  belief,  and  might  afterwards  from  other  circumstances 
be  convinced  that  he  was  wrong,  and  swear  to  the  reverse,  without 
meaning  to  swear  falsely  either  time.^      Moreover,  when   a   man 

1  R.  V.  Wheatland,  8  C.  &  P.  238,  241,  per  Gurney,  B. ;  R.  v.  Gaynor,  1 
Crawf.  &  D.,  C.  C.  142;  Jebb,  C.  C.  262,  S.  C,  R.  v.  Harris,  5  B.  &  A.  926. 

^  Anou.,  per  Yates,  J.,  Ld.  Mansfield,  "Wilmot  and  Aston,  Js.,  concurring; 
5  B.  &  A.  939,  940,  n.  See  the  observations  of  Mr.  Greaves  on  this  case,  in 
2  Russ.  C.  &  M.  653,  n. 

^  R.  V.  Kuill,  5  B.  &  A.  929,  930,  n.;  R.  v.  Hook,  Dear.  &  Bell,  606;  8 
Cox,  5,  S.  C. 

*  Per  Holroyd,  J.,  in  R.  v.  Jackson,  1  Lew.  C.  C.  270.  This  very  reasonable 
doctrine  is  in  perfect  accordance  with  the  rule  of  the  Crim.  Law  of  Scotland, 
as  laid  down  by  Mr.  Alison,  in  his  excellent  treatise  on  that  subject,  in  the 
following  terms: — "When  contradictory  and  inconsistent  oaths  have  been 
emitted,  the  mere  contradiction  is  not  decisive  evidence  of  the  e.xistence  of 
perjury  in  one  or  other  of  them;  but  the  prosecutor  must  establish  which  was 
the  true  one,  and  libel  on  the  other  as  containing  the  folsehood.  "VNliere 
depositions  contradictory  to  each  other  have  been  emitted  by  the  same 
person  on  the  same  matter,  it  may  with  certainty  be  concluded,  that  one  or 
other  of  them  is  flilse.  But  it  is  not  relevant  to  infer  perjury  in  so  loose  a 
manner;  but  the  pro.secutor  must  go  a  step  further,  and  specify  distinctly 
which  of  the  two  contains  the  falsehood,  and  peril  his  case  upon  the  means  he 
possesses  of  proving  perjury  in  that  deposition.  To  admit  the  opposite  course, 
and  allow  the  prosecutor  to  libel  on  both  depositions,  and  make  out  his  charge 
by  comparing  them  together,  without  distinguishing  which  contains  the  truth 
and  which  the  falsehood,  would  be  directly  contrary  to  the  precision  justly 
required  in  criminal  proceedings.  In  the  older  practice  this  distinction  does 
not  seem  to  have  been  distinctly  recognised;  but  it  is  now  justly  considered 
indispensable  that  the  perjury  should  be  specified  as  existing  in  one,  and  the 
other  deposition  referred  to  in  viodum  prohationis,  to  make  out,  along  with 
other  circumstances,  where  the  truth  really  lay."     See  Alison,  Cr.  L.  476. 

(3694) 


CHAP.  XVII.]     CORROBORATION  OF  W03IEN  IN  BASTARDY  CASES.  827 

merely  swears  to  the  best  of  his  memory  and  belief,  it  of  course 
requires  very  strong  proof  to  show  that  he  is  wilfully  perjured.' 


§  963.  The  rule  requiring  something  more  than  the  testimony  I  880 
of  a  single  witness  on  indictments  for  perjury,  is  confined  to  the 
proof  of  the  falsity  of  the  matter  on  which  the  perjury  is  assigned. 
Therefore,  the  holding  of  the  court,  the  proceedings  in  it,  the  ad- 
ministering the  oath,  the  evidence  given  by  the  prisoner,  and,  in 
short,  all  the  facts,  exclusive  of  the  falsehood  of  the  statement, 
which  must  be  proved  at  the  trial,  may  be  established  by  any  evi- 
dence that  would  be  sufficient,  were  the  prisoner  charged  with  any 
other  offence."  Moreover,  when  several  facts  must  be  proved  to 
make  out  an  assignment  of  perjury,  each  of  these  facts  may,  in  strict 
law,  be  established  by  the  uncontroverted  testimony  of  a  single 
witness.  For  instance,  if  the  false  swearing  be  that  two  persons 
were  together  at  a  certain  time,  and  the  assignment  of  perjury  be 
that  they  were  not  together  at  that  time,  evidence  by  one  vntness 
that  at  the  time  named  the  one  person  was  at  London,  and  by 
another  witness  that  at  the  same  time  the  other  person  was  in  York, 
will  be  sufficient  proof  of  the  assignment  of  perjury.^ 

§  964.  In  cases  of  bastardy,  a  man  cannot  be  adjudged  to  be  the  §  881 
putative  father  of  an  illegitimate  child  on  the  single  testimony  of 
the  mother;  but  before  an  order  of  affiliation  can  be  made  by  the 
petty  sessions,*  or  confirmed  by  the  quarter  sessions,^  the  mother 
must  not  only  be  a  witness,*^  but  her  evidence  must  be  corroborated,^ 
ill  some  viaterial  jicirticalar,  by  other  testimony,  to  the  satisfaction 
of  the  justices ;  and  the  order  will  be  bad,  if  it  does  not  allege  that 
the  confirmatory  evidence  was  material.*  This  rule  has  been  wisely 
established,  in  order  to  protect  men  from  accusations  which  profli-. 
gate,  designing,  and  interested  women  might  easily  make,  and  which, 


»  Per  Tindal,  C.  J.,  in  R.  v.  Parker,  C.  &  Marsh.  645, 
^  2  Russ.  C.  &  M.  651;  2  Hawk.,  P.  C.  c.  46,  ?  10. 
3  R.  V.  Roberts,  2  C.  &  Kir.  614,  per  Patteson,  J. 

*  35  &  36  v.,  c.  65,  H;  36  V.,  c.  9,  g  5.  *  8  &  9  V.,  c.  10,  ?  6. 

«  R.  V.  Armitage,  7  Law  Rep.,  Q.  B.  773;  42  L.  J.,  M.  C.  15,  S.  C. 
'  See  Hodges  v.  Bennett,  5  H.  &  N.  625;  29  L.  J.,  M.  C.  224,  S.  C. 
«  R.  V.  Read,  9  A.  &  E.  619;  1  P.  &  D.  413,  S.  C. 

(3695) 


828         CORROBORATIVE  PROOF,  WHEN  REQUIRED.      [PART  II. 

howevei'  false,  it  might  be  extremely  difficult  to  disprove.  Still, 
the  rule  must  not  be  strained  so  as  to  render  corroboration  necessary 
with  respect  to  the  actual  begetting  of  the  child,  but  it  will  suffice 
if  any  evidence  be  forthcoming  calculated  to  raise  a  probability  that 
illicit  intercourse  may  have  taken  place,  as,  for  example,  proof  of 
acts  of  familiarity  between  the  mother  and  the  putative  father, 
though  these  may  have  occurred  long  prior  to  the  date  when  the 
child  was  begotten.' 


§  964a.  In  actions  for  breach  of  promise  of  marriage  the  plaintiff, 
though  now  an  admissible  witness,  cannot  recover  a  verdict  on  his 
or  her  uncorroborated  testimony,  but  some  other  material  evidence 
in  support  of  the  promise  must  be  forthcoming.^  Again,  no  order 
for  the  removal  of  a  pauper,  in  respect  of  a  settlement  acquired 
by  three  years  residence  in  a  parish,  can  be  made  "  upon  the 
evidence  of  the  person  to  be  removed,  without  such  corroboration  as 
the  justices  or  court  may  think  sufficient."  ^ 

§  965.  On  several  occasions  it  has  been  asserted  in  more  or  less 
authoritative  language,  that  the  Chancery  Division  of  the  High 
Court  cannot  act  on  the  unsupported  testimony  of  any  person  in  his 
own  favour.*  Were  this  doctrine,  however,  submitted  to  the  Court 
of  last  resort,  it  would  probably  not  be  upheld  in  its  integrity;^ 
though  cases  may  sometimes  occur, — as,  for  example,  if  a  verbal 
promise  by  a  deceased  person  were  sought  to  be  established  by  the 
uncorroborated  statement  of  the  promisee, — in  which  a  judge  would 
undoubtedly  be  justified  in  refusing  to  pronounce  a  decree  without 
additional  evidence.'*     In  the  recent  case  of  Finch  v.    Finch,'  the 

>  Cole  V.  Manning,  46  L.  J.,  M.  C.  175;  L.  R.,  2  Q.  B.  D.  611,  S.  C. 

2  32  &  33  v.,  c.  68,  §2.  See  Hickey  v.  Campion,  I.  R.,  6  C.  L.  557; 
Bessela  v.  Stern,  L.  R.,  2  C.  P.  D.  265,  per  Ct.  of  App. ;  46  L.  J.,  C.  P.  467, 
S.  C. 

*  39  &  40  v.,  c.  61,  ?  34;  R.  v.  Abergavenny  Union,  L.  R.,  6  Q.  B.  D.  31; 
50  L.  J.,  M.  C.  1,  S.  C. 

*  Down  I'.  Ellis,  35  Beav.  578;  Grant  v.  Grant,  34  Beav.  623;  Nunn  v. 
Fabian,  35  L.  J.,  Ch.  140;  Hartford  v.  Power,  I.  R.,  3  Eq.  602. 

5  See  U.  falsely  called  J.  v.  J.,  1  Law  Rep.,  P.  &  D.  461. 
^  Rogers  v.  Powell,  38  L.  J.,  Ch.  648,  per  James,  V.-C;  Hartford  v.  Power, 
I.  R.,  3  Eq.  602. 

^  L.  R.  23  Ch.  D.  267. 

(3696) 


CHAP.  XVII.]      PROOF  REQUIRED  IN  ECCLESIASTICAL  COURTS.  829 

exception  just  referred  to  was  recognised  by  the  Court  of  Appeal  as 
a  practice  which  ought  still  to  prevail  when  judges  sat  as  jurymen 
to  determine  facts,  and  the  Court  held  at  the  same  time  that  the 
rule  was  applicable  to  cases  of  debts  as  well  as  to  cases  of  gifts. 
Sir  George  Jessel,  however,  with  characteristic  accuracy,  guarded 
and  limited  his  decision  by  distinctly  pointing  out,  that  the  rule 
was  one  of  mere  practice,  and  not  of  strict  law.' 


§  966.  In  the  Ecclesiastical  Courts  the  testimony  of  a  single  I  883 
witness,  though  omni  exceptione  major,  is  insufficient  to  support  a 
decree,  when  such  testimony  stands  unsupported  by  what  the 
civilians  pedantically  call  "  adminicular  circumstances."  "  This 
doctrine  was  in  former  days  productive  of  much  injustice,^  but  it 
is  now  of  little  practical  importance,  as  the  spiritual  courts  have,  by 
a  series  of  legislative  improvements,  been  shorn  of  their  jurisdic- 
tion,— first,  over  suits  for  defamation,* — then,  over  suits  for  brawl- 
ing,^— next,  in  relation  to  the  grant  and  revocation  of  probates  of 
wills  and  letters  of  administration,  and  to  all  matters  and  causes 
testamentary,® — and  lastly,  in  respect  of  divorces  a  mensa  et  thoro, 
suits  of  nullity  of  marriage,  suits  of  jactitation  of  marriage,  suits 
for  restitution  of  conjugal  rights,  and,  indeed,  all  causes,  writs,  and 
matters  matrimonial.^  In  the  Probate  and  Divorce  Division  of  the 
High  Courts,  whether  for  England  or  Ireland,  the  rules  of  evidence 
observed  in  the  old  superior  Courts  of  Common  Law  are  applied  to 
the  trial  of  all  questions  of  fact.^  It  seems,  however,  that  in  pro- 
secutions under  the  Church  Discipline  Act,"  the  Court  of  Arches 
will  still  be  guided  by  the  old  ecclesiastical  rules  as  to  evidence,  and 


1  L.  R.  23  Ch.  D.  271. 

^  Doaelliin  v.  Doiiellan,  2  Hagg.  Ec.  R.  144  (SuppL);  Simraonds  ?'.  Sim- 
monds,  5  Ec.  &  IMar.  Cas.  324,  340—347,  per  Dr.  Lushington;  id.  G  Ec.  &  ]\Iar. 
Cas.  578,  per  Sir  H.  Fust;  Crompton  v.  Butler,  1  Cons.  R.  460;  Hutchins  v. 
Denziloe,  1  Cons.  R.  181,  182. 

^  See  cases  cited  and  discussed  in  2nd  ed.  of  this  work,  H  883 — 886. 

*  18  &  19  v.,  c.  41,  as  to  England;  23  &  24  V.,  c.  32,  as  to  Ireland. 

5  23  &  24  v.,  c.  32,  both  in  England  and  Ireland. 

6  20  &  21  v.,  c.  77,  I  3;  20  &  21  V.,  c.  79,  §  5,  Ir. 
'  20  &  21  v.,  c.  85,  I  2. 

8  20  &  21  v.,  c.  77,  I  33;  20  &  21  V.,  c.  79,  §  38,   Ir.;  20  &  21  V     c.  85, 
§  48;  34  &  35  V.,  c.  49,  I  8,  Ir. 
»  3  &  4  v.,  c.  86. 

(3697) 


830  CORROBORATION  OF  ACCOMPLICES.  [PAKT  II, 

will  require  the  testimony  of  a  single  witness  to  be  corroborated  at 
least  to  a  certain  extent.* 


§  967.  It  remains  only  to  mention  tlie  case  of  accomplices,  who 
are  usually  interested,'  and  always  infamous,  witnesses,  and  whose 
testimony  is  admitted  from  necessity,  it  being  often  impossible, 
without  having  recourse  to  such  evidence,  to  bring  the  principal 
offenders  to  justice.  The  ^  degree  of  credit,  which  ought  to  be  given 
to  the  testimony  of  an  accomplice,  is  a  matter  exclusively  within 
the  province  of  the  jury.  It  has  sometimes  been  said,  that  they 
ought  not  to  believe  him,  unless  his  testimony  is  corroborated  by 
other  evidence;  and,  without  doubt,  great  caution  in  weighing  such 
testimony  is  dictated  by  prudence  and  reason.  But  no  positive  rule 
of  law  exists  on  the  subject;  and  the  jury  may,  if  they  please,  act 
upon  the  evidence  of  the  accomplice,  even  in  a  capital  case,  without 
any  confirmation  of  his  statement.*  It  is  true  that  judges,  in  their 
discretion,  generally  advise  a  jury  not  to  convict  a  prisoner  upon 
the  testimony  of  an  accomplice  alone;  and  although  the  adoption 
of  this  practice  will  not  be  enforced  by  a  Court  of  Keview,"  its 
omission  will,  in  most  cases,  be  deemed  a  neglect  of  duty  on  the 
part  of  a  judge.^  Considering,  too,  the  respect  which  is  always 
paid  by  the  jury  to  such  advice  from  the  bench,  it  may  be  regarded 
as  the  settled  course  of  practice,  not  to  convict  a  prisoner,  excepting 
under  very  special  circumstances,  upon  the  uncorroborated  testi- 
mony of  an  accomplice.'  The  judges  do  not,  in  such  cases,  withdraw 
the  cause  from  the  jury  by  positive  directions  to  acquit,  but  they 
only  advise  them  not  to  give  credit  to  the  testimony. 

^  Berney  v.  Bp.  of  Norwich,  36  L.  J.,  Ec.  C.  10,  per  Pr.  C.  This  case  seems 
to  overrule  Burder  v.  O'Neill,  2  New  R.  551. 

''It  used  to  be  "  a  popular  saying,  that  they  fished  for  prey,  like  tame 
cormorants,  with  ropes  round  their  necks."  Macaulay's  History  of  Engl., 
vol.  1,  ch.  5,  p.  666. 

3  Gr.  Ev.  §  380,  in  great  part. 

*  E.  V.  Stubbs,  25  L.  J.,  M.  C.  16;  Pearce  &  D.  555,  S.  C;  R.  v.  Hastings, 
7  C.  &  P.  152,  i)er  Ld.  Denman;  R.  v.  Jones,  2  Camp.  132,  per  Ld.  Ellen- 
borough;  31  How.  St.  Tr.  315,  S.  C;  R.  v.  Atwood,  1  Lea.  464;  R.  v. 
Durham,  id.  478;  R.  v.  Dawber,  3  Stark.  R.  34;  R.  v.  Sheehan,  Jebb,  C.  C. 
54;  R.  V.  Jarvis,  2  M.  &  Rob.  40. 

s  R.  V.  Boye.s,  30  L.  J.,  Q.  B.  302;  1  B.  &  S.  311,  S.  C. 

«  R.  V.  Barnard,  1  C.  &  P.  88;  R.  v.  Wilkes,  7  C.  &  P.  273. 

'  R.  V.  Gallagher;  15  Cox,  289,  318. 

(3698) 


CHAP.  XVII.]  CORROBORATION  OF  ACCOMPLICES.  831 

§  968.  It  has  been  stated,  that  this  practice  is  not  applicable  to  §  888 
cases  of  misdemeanor;  ^  but  there  appears  to  be  no  foundation, 
either  in  reason  or  law,  for  such  a  distinction  between  misdemeanors 
and  felonies;  and,  in  fact,  the  distinction,  if  it  ever  existed,  no 
longer  prevails."  Still,  the  extent  of  corroboration  will  of  course 
depend  much  upon  the  nature  of  the  ci'ime,^  and  the  degree  of 
moral  guilt  attached  to  its  commission;  and  if  the  ofiPence  be  one 
of  a  purely  legal  character,  as  for  instance,  the  non- repair  of  a 
highway, — or  if  it  imply  no  great  moral  delinquency,  as  the  fact  of 
having  been  present  at  a  prize-fight,*  which  unfortunately  terminated 
in  manslaughter,^ — the  parties  concerned,  though  in  the  eye  of  the 
law  criminal,  will  not  be  considered  such  accomplices  as  to  render 
necessary  any  confirmation  of  their  evidence.  Neither,  in  actions 
to  recover  penalties,  does  the  law  apprehend  any  danger  from  the 
mere  fact  of  jurors  being  left,  without  any  special  caution  from  the 
bench,  to  weigh  the  uncorroborated  testimony  of  an  accomplice.^ 

§  969.^  But  although  on  criminal  trials  it  is  the  settled  practice  g  889 
to  require  other  evidence  in  corroboration  of  that  of  an  accomplice; 
yet  the  manner  and  extent  of  the  corroboration  required  are  not  so 
clearly  defined.  Some  judges  have  deemed  it  sufiicient,  if  the  wit- 
ness be  confirmed  in  any  material  part  of  the  case;  others  have  . 
been  satisfied  with  confirmatory  evidence  as  to  the  corpus  delicti 
only;  but  others,  with  more  reason,  have  thought  it  essential  that 
corroborative  proof  should  be  given  of  the  prisoner  having  actually 
participated  in  the  offence;  and,  when  several  prisoners  are  tried, 
that  confirmation  should  be  required  as  to  all  of  them,  before  all 
can  be  safely  convicted.*  This  last  is  undoubtedly  now  the  pre- 
vailing opinion;  the  confirmation  of  the  witness,  as  to  the  com- 

1  Per  Gibbs,  Att.-Gen.  arg.  in  R.  v.  Jones,  31  How.  St.  Tr.  315. 

=>  R.  V.  Farler,  8  C.  &  P.  106. 

^  R.  V.  Jarvis,  2  M.  &  Rob.  40,  52,  per  Gurney,  B.  See  R.  v.  Cramp,  14 
Cox,  390,  where  the  prisoner  was  charged  with  attempting  to  produce  abor- 
tion, and  the  woman  was  called  as  a  witness. 

*  See  R.  V.  Coney,  L.  R.,  8  Q.  B.  D.  534;  51  L.  J.,  M.  C.  66,  S.  C;  and 
15  Cox,  46. 

^  R.  V.  Hargrave,  5  C.  &  P.  170,  per  Patteson,  J. ;  R.  v.  Young,  10  Cox, 
371. 

«  M'Clory  v.  Wright,  10  Ir.  Law  R.,  N.  S.  514,  519,  per  Keogh,  J.;  Magee 
tJ.  Mark,  11  id.  449.  '  Gr.  Ev.  |  381,  in  great  part. 

«  R.  V.  Stubbs,  25  L.  J.,  M.  C.  16;  Pearce  &  D.  555,  S.  C. 

(3699) 


833  CORROBORATION  OF  ACCOMPLICES.  [PAKT  II. 

mission  of  the  crime,  being  considered  no  confirmation  at  all,  as  it 
respects  the  prisoner.  For,  in  describing  the  circumstances  of  the 
offence,  he  may  have  no  inducement  to  speak  falsely,  but  on  the 
contrary  every  motive  to  declare  the  truth,  if  he  wishes  to  be  be- 
lieved when  he  shall  afterwards  endeavour  to  fix  the  crime  upon 
the  prisoner.' 

§  970.  This  doctrine  has  been  well  explained  by  the  late  Lord  ^  890 
Abioger.  "  It  is  a  practice,"  said  his  lordship,  in  a  case  of  night- 
poaching,^  "  which  deserves  all  the  reverence  of  the  law,  that  judges 
have  uniformly  told  juries  that  they  ought  not  to  pay  any  respect 
to  the  testimony  of  an  accomplice,  unless  the  accomplice  is  corro- 
borated in  some  material  circumstance.  Now,  in  my  opinion,  that 
corroboration  ought  to  consist  in  some  circumstance  that  affects  the 
identity  of  the  party  accused.  A  man  who  has  been  guilty  of  a 
crime  himself  will  always  be  able  to  relate  the  facts  of  the  case,  and 
if  the  confirmation  be  only  on  the  truth  of  that  history,  without 
identifying  the  persons,  that  is  really  no  corroboration  at  all.  If  a 
man  were  to  break  open  a  house  and  put  a  knife  to  your  throat,  and 
steal  your  property,  it  would  be  no  corroboration  that  he  had  stated 
all  the  facts  correctly,  that  he  had  described  how  the  person  did 
put  a  knife  to  the  throat,  and  did  steal  the  property.  It  would  not 
at  all  tend  to  show  that  the  party  accused  participated  in  it.*  *  * 
The  danger  is,  that  when  a  man  is  fixed,  and  knows  that  his  own 
guilt  is  detected,  he  will  purchase  impunity  by  falsely  accusing 
others."  If  two  or  more  accomplices  are  produced  as  witnesses, 
they  are  not  deemed  to  corroborate  each  other;  but  the  same  rule 
is  applied,  and  the  same  confirmation  is  required,  as  if  they  were 
but  one.^  The  testimony,  too,  of  the  wife  of  an  accomplice  will  not 
be  considered  corroborative  of  the  evidence  of  her  husband.* 

§  971.^  To  one  class  of  persons,  apparently  accomplices,  the  rule    §  891 


^  R.  V.  Farler,  8  C.  &  P.  106,  per  Ld.  Abinger;  R.  v.  Wilkes,  7  C.  &  P.  272, 
per  Alderson,  B.;  R.  v.  Moores,  id.  270;  R.  v.  Addis,  6  C.  &  P.  388,  per 
Patteson,  J.;  R.  v.  Wells,  M.  &  M.  326,  per  Littledale,  J.;  R.  v.  Sheehan, 
Jebb,  C.  C.  54;  R.  v.  Carey,  id.  203.  ""  R.  v.  Farler,  8  C.  &  P.  107,  108. 

*  R.  V.  Noakes,  5 C.  &  P.  326,  per  Littledale,  J.;  R.  t'.  Jlagill,  Ir.  Cir.  R. 
418,  per  Perrin,  J.  *  R.  v.  Neal,  7  C.  &  P.  168,  per  Park,  J. 

^  Gr.  Ev.  I  382,  almost  verbatim. 

(3700) 


CHAP.  XVII.]  CORROBORATION  OF  INFORMERS.  833 

requiring  corroborative  evidence  does  not  apply;  namely,  persons 
who  have  entered  into  communication  with  conspirators,  but  who, 
in  consequence  of  either  a  subsequent  repentance,  or  an  original  de- 
termination to  frustrate  the  enterprise,  have  disclosed  the  conspiracy 
to  the  public  authorities,  under  whose  direction  they  continue  to 
act  with  their  guilty  confederates,  till  the  matter  can  be  so  far  ma- 
tared  as  to  insure  their  conviction.  The  early  disclosure  is  con- 
sidered  as  binding  the  party  to  his  duty  j  and  though  a  great  degree 
of  disfavour  may  attach  to  him  for  the  part  he  has  acted  as  an  m- 
former,^  yet  his  case  is  not  treated  as  that  of  an  accomplice.^ 

^  Valore. 

'"But  these  are  called  Informers;  men  that  live 
By  treason,  as  Rat  catchers  do  by  poison." 

Beaumont's  "Woman  Hater."  Act  V.,  Sc.  2. 
2  R.  V.  Despard,  28  How.  St.  Tr.  489,  per  Ld.  Ellenborough. 


(3701) 


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